________________________________________________________________________________
XXXXXX CHEMICALS AND PLASTICS OPERATING LIMITED PARTNERSHIP
BCP FINANCE CORPORATION
9 1/2% Notes Due 2005
_______________________
INDENTURE
Dated as of May 1, 1995
_______________________
THE CHASE MANHATTAN BANK (National Association),
As Trustee
________________________________________________________________________________
CROSS-REFERENCE TABLE/1/
TIA Indenture
Section Section
------- ---------
310(a)(1) ............................ 7.10
(a)(2) ............................ 7.10
(a)(3) ............................ N.A.
(a)(4) ............................ N.A.
(b) ............................ 7.08; 7.10
(c) ............................ N.A.
311(a) ............................ 7.11
(b) ............................ 7.11
(c) ............................ N.A.
312(a) ............................ 2.05
(b) ............................ 10.03
(c) ............................ 10.03
313(a) ............................ 7.06
(b)(1) ............................ N.A.
(b)(2) ............................ 7.06
(c) ............................ 10.02
(d) ............................ 7.06
314(a) ............................ 4.02; 10.02
(b) ............................ N.A.
(c)(1) ............................ 10.04
(c)(2) ............................ 10.04
(c)(3) ............................ N.A.
(d) ............................ N.A.
(e) ............................ 10.05
(f) ............................ 4.12
315(a) ............................ 7.01
(b) ............................ 7.05; 10.02
(c) ............................ 7.01
(d) ............................ 7.01
(e) ............................ 6.11
316(a)(last
sentence) ............................ 10.06
(a)(1)(A) ............................ 6.05
(a)(1)(B) ............................ 6.04
(a)(2) ............................ N.A.
(b) ............................ 6.07
317(a)(1) ............................ 6.08
(a)(2) ............................ 6.09
(b) ............................ 2.04
318(a) ............................ 10.01
N.A. means Not Applicable.
__________________________
/1/ Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE I
Definition and Incorporation by Reference
SECTION 1.01. Definitions........................................... 1
SECTION 1.02. Other Definitions..................................... 16
SECTION 1.03. Incorporation by Reference of Trust Indenture Act..... 16
SECTION 1.04. Rules of Construction................................. 17
ARTICLE II
The Securities
SECTION 2.01. Form and Dating....................................... 18
SECTION 2.02. Execution and Authentication.......................... 18
SECTION 2.03. Registrar and Paying Agent............................ 18
SECTION 2.04. Paying Agent To Hold Money In Trust................... 19
SECTION 2.05. Securityholder Lists.................................. 19
SECTION 2.06. Transfer and Exchange................................. 20
SECTION 2.07. Replacement Securities................................ 20
SECTION 2.08. Outstanding Securities................................ 20
SECTION 2.09. Temporary Securities; Global Securities............... 21
SECTION 2.10. Cancellation.......................................... 22
SECTION 2.11. Defaulted Interest.................................... 22
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee.................................... 23
SECTION 3.02. Selection of Securities To Be Redeemed................ 23
SECTION 3.03. Notice of Redemption.................................. 23
SECTION 3.04. Effect of Notice of Redemption........................ 24
SECTION 3.05. Deposit of Redemption Price........................... 24
SECTION 3.06. Securities Redeemed in Part........................... 24
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities................................ 25
SECTION 4.02. SEC Reports.......................................... 25
SECTION 4.03. Limitation on Restricted Payments.................... 25
SECTION 4.04. Limitation on Debt................................... 28
SECTION 4.05. Limitation on Restrictions on Distributions from
Subsidiaries......................................... 29
-i-
SECTION 4.06. Limitation on Sales of Assets and Subsidiary
Stock................................................ 29
SECTION 4.07. Limitation on Debt and Preferred Stock of
Subsidiaries......................................... 32
SECTION 4.08. Limitation on Liens Securing Debt.................... 33
SECTION 4.09. Limitation on Sale and Leaseback Transactions........ 34
SECTION 4.10. Limitation on Transactions with Affiliates........... 34
SECTION 4.11. Change of Control.................................... 35
SECTION 4.12. Uncompleted Acquisition Offer........................ 36
SECTION 4.13. Compliance Certificate............................... 38
ARTICLE V
Successors
SECTION 5.01. When the Company May Merge or Transfer Assets........ 38
SECTION 5.02. When Finance Corp. May Merge or Transfer Assets...... 38
SECTION 5.03. Obligations After Merger or Transfer................. 39
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default.................................... 40
SECTION 6.02. Acceleration......................................... 41
SECTION 6.03. Other Remedies....................................... 42
SECTION 6.04. Waiver of Past Defaults.............................. 42
SECTION 6.05. Control by Majority.................................. 42
SECTION 6.06. Limitation on Suits.................................. 43
SECTION 6.07. Rights of Holders to Receive Payment................. 43
SECTION 6.08. Collection Suit by Trustee........................... 43
SECTION 6.09. Trustee May File Proofs of Claim..................... 43
SECTION 6.10. Priorities........................................... 44
SECTION 6.11. Undertaking for Costs................................ 44
SECTION 6.12. Waiver of Stay or Extension Laws..................... 44
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee.................................... 45
SECTION 7.02. Rights of Trustee.................................... 46
SECTION 7.03. Individual Rights of Trustee......................... 47
SECTION 7.04. Trustee's Disclaimer................................. 47
SECTION 7.05. Notice of Defaults................................... 47
SECTION 7.06. Reports by Trustee to Holders........................ 47
SECTION 7.07. Compensation and Indemnity........................... 47
SECTION 7.08. Replacement of Trustee............................... 48
SECTION 7.09. Successor Trustee by Merger.......................... 49
(ii)
SECTION 7.10. Eligibility; Disqualification........................ 49
SECTION 7.11. Preferential Collection of Claims Against Issuers.... 50
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance..... 50
SECTION 8.02. Conditions to Defeasance............................. 51
SECTION 8.03. Application of Trust Money........................... 52
SECTION 8.04. Repayment to the Company............................. 52
SECTION 8.05. Indemnity for Government Obligations................. 52
SECTION 8.06. Reinstatement........................................ 52
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders........................... 53
SECTION 9.02. With Consent of Holders.............................. 53
SECTION 9.03. Compliance with Trust Indenture Act.................. 54
SECTION 9.04. Revocation and Effect of Consents and Waivers........ 54
SECTION 9.05. Notation on or Exchange of Securities................ 55
SECTION 9.06. Trustee to Sign Amendments........................... 55
ARTICLE X
Miscellaneous
SECTION 10.01. Trust Indenture Act Controls......................... 55
SECTION 10.02. Notices.............................................. 55
SECTION 10.03. Communication by Holders with Other Holders.......... 56
SECTION 10.04. Certificate and Opinion as to Conditions Precedent... 56
SECTION 10.05. Statement Required in Certificate or Opinion......... 56
SECTION 10.06. When Securities Disregarded.......................... 57
SECTION 10.07. Rules by Trustee, Paying Agent and Registrar......... 57
SECTION 10.08. Legal Holidays....................................... 57
SECTION 10.09. Governing Law........................................ 57
SECTION 10.10. No Recourse Against Others........................... 57
SECTION 10.11. Successors........................................... 58
SECTION 10.12. Multiple Originals................................... 58
SECTION 10.13. Table of Contents; Headings.......................... 58
EXHIBIT A [FORM OF SECURITY]................................... 60
(iii)
INDENTURE dated as of May 1, 1995, among XXXXXX CHEMICALS AND PLASTICS
OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership, BCP FINANCE
CORPORATION, a Delaware corporation, and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), a national association organized under the laws of the United
States of America.
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the 9 1/2% Notes Due 2005
(the "Securities"):
ARTICLE I
Definition and Incorporation by Reference
-----------------------------------------
SECTION 1.01. Definitions.
-----------
"Accounts Receivable" means (i) any accounts receivable (whether or
not earned by performance), chattel paper, instruments, documents, general
intangibles, trade acceptances, any other rights to receive installment, rental
or other payments for, or relating to amounts due or to become due on account
of, goods or equipment sold or leased or to be sold or leased or services
rendered or to be rendered or funds advanced or loaned or to be advanced or
loaned and other similar rights to payment of any kind, (ii) any proceeds of any
of the foregoing and (iii) any interest in any property or asset of any kind
(whether of the obligor with respect to such accounts receivable or any other
person securing the payment of any item listed in clause (i) above) .
"Acquisition" means the purchase of the Addis Assets pursuant to the
Asset Transfer Agreement.
"Addis Assets" means a polyvinyl chloride production facility located
in Addis, Louisiana and certain related assets to be purchased pursuant to the
Asset Transfer Agreement.
"Affiliate" of any person means (i) any person that, directly or
indirectly, is in control of, is controlled by or is under common control with
such person or (ii) any person who is a director or officer (A) of such person,
(B) of any Subsidiary of such person or (C) of any person described in clause
(i) above. For purposes of this definition, control of a person means the power,
direct or indirect, to direct or cause the direction of the management and
policies of such person whether by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) of
Capital Stock of a Subsidiary (other than directors' qualifying shares),
property or other assets (each
referred to for the purposes of this definition as a "disposition") by the
Company or any of its Subsidiaries, including any disposition by means of a
merger, consolidation or similar transaction, other than (i) a disposition by
the Company or a Subsidiary to the Company or a Wholly Owned Subsidiary, (ii) a
disposition of property or assets at fair market value in the ordinary course of
business, (iii) a disposition of obsolete assets in the ordinary course of
business, (iv) a disposition that constitutes a Restricted Payment or a sale and
leaseback transaction and (v) any sale, transfer or other disposition by the
Company or any Subsidiary of Accounts Receivable or of any Subsidiary
substantially all the assets of which are Accounts Receivable, which sale,
transfer or other disposition constitutes a "sale" under generally accepted
accounting principles (as in effect at the time thereof).
"Asset Transfer Agreement" means the Asset Transfer Agreement, dated
as of August 12, 1994, as amended, between the Company and Occidental Petroleum
Company.
"Attributable Debt" in respect of a sale and leaseback arrangement
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such arrangement (including any period for which such lease
has been extended).
"Available Cash" has the meaning given to such term in the Amended and
Restated Agreement of Limited Partnership of Xxxxxx Chemical and Plastics
Operating Limited Partnership, dated as of November 30, 1987, as amended to the
date of this Indenture.
"Average Life" means, as of the date of determination, with respect
to any Debt, the quotient obtained by dividing (a) the sum of the products of
(i) the numbers of years from the date of determination to the dates of each
successive scheduled principal payment or redemption or similar payment with
respect to such Debt multiplied by (ii) the amount of such payment, by (b) the
sum of all such payments.
"BCPM" means BCP Management, Inc., a Delaware corporation, and its
successors.
"Board of Directors" means the Board of Directors of the Company (or,
if the Company is a limited partnership or a general partnership, of any of its
general partner or partners, respectively, authorized to act on behalf of such
limited partnership or general partnership, as the case may be, in connection
with this Indenture) or any committee thereof duly authorized to act on behalf
of such Board.
2
"Xxxxxx" means Xxxxxx, Inc., a New Jersey corporation, and its
successors (other than as a result of any transaction described in clause (a)(i)
of the definition of "Change of Control" as if Xxxxxx, Inc. were deemed for such
purposes to be the Company).
"Business Day" means each day that is not a Legal Holiday.
"Capital Lease Obligations" of a person means any obligation which is
required to be classified and accounted for as a capital lease on the face of a
balance sheet of such person prepared in accordance with generally accepted
accounting principles; the amount of such obligation shall be the capitalized
amount thereof, determined in accordance with generally accepted accounting
principles; and the stated maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or interests
in (however designated) capital stock, including any preferred stock, and with
respect to a partnership, any interest therein (whether general or limited) that
confers on a person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership; provided that Capital Stock
shall not include any debt security that is convertible into or exchangeable for
Capital Stock.
A "Change of Control" occurs when (a) (i) any person or "group" for
purposes of Section 13(d) of the Exchange Act (a "Group"), other than Permitted
Holders, shall beneficially own, directly or indirectly, more than 50% of the
total voting power of all classes of Voting Stock of BCPM, the Holding Company
or the Company, (ii) (A) the Company shall sell, lease, convey or otherwise
dispose of all or substantially all the Company's assets to any person or
Group or (B) the Company shall consolidate with or merge into another person or
another person shall consolidate with or merge into the Company, in case of
either of the foregoing, in a transaction in which the outstanding Voting Stock
of the Company is reclassified or changed into or exchanged for cash, securities
or other property, other than, in the case of either of clauses (A) or (B), to,
with or into, as applicable, one or more Permitted Holders or a person, more
than 50% of the total voting power of all classes of Voting Stock of which,
after giving effect to such transaction, is beneficially owned, directly or
indirectly, by one or more Permitted Holders or (iii) the Company, the Holding
Company or BCPM shall adopt a plan of liquidation or dissolution (unless all or
substantially all the Company's assets are distributed
3
pursuant to such plan to one or more Permitted Holders) and (b) a Rating Decline
occurs within the period of 60 days following the first public announcement of
any of the events described in clause (a) (the "Announcement") (which period
shall be extended if during such 60 days either both Rating Agencies shall have
placed the Company on credit watch (with negative implications) or one of the
Rating Agencies shall have placed the Company on credit watch (with negative
implications) and the other Rating Agency shall have made the determination
described in the definition of Rating Decline, until such time as it can be
determined whether or not there has been a Rating Decline). A "Rating Decline"
shall be deemed to have occurred (i) in the event the Securities are rated below
Investment Grade by each Rating Agency on the day before the Announcement, if
each such rating is reduced by more than one gradation (whether or not within
the same Rating Category) and (ii) in the event the Securities are rated
Investment Grade by either or both of the Rating Agencies on the day before the
Announcement, if the Securities cease to be rated Investment Grade by at least
one Rating Agency. "Rating Agency" means either Standard & Poor's Corporation
and its successors ("S&P"), or Xxxxx'x Investors Service Inc. and its successors
("Moody's"), or if S&P and Moody's or both shall not make a rating of the
Securities publicly available, a nationally recognized statistical rating agency
or agencies, as the case may be, selected by the Company which shall be
substituted for S&P or Moody's or both, as the case may be; and "Rating
Category" means each major rating category symbolized by (x) in the case of S&P,
AAA, AA, A, BBB, BB, B, CCC, CC and C and each such Rating Category shall
include pluses or minuses ("gradations") modifying such capital letters; (y) in
the case of Moody's, Aaa, Aa, A, Baa, Ba, B, Caa, Ca, and C and each such Rating
Category shall include added numerals such as 1, 2, or 3 ("gradations")
modifying such letters; and (z) with respect to any other Rating Agency,
equivalent symbols. "Investment Grade" means (i) with respect to S&P, any of the
Rating Categories from and including AAA to and including BBB-and (ii) with
respect to Moody's, any of the Rating Categories from and including Aaa to and
including Baa3.
"Company" means Xxxxxx Chemicals and Plastics Operating Limited
Partnership, a Delaware limited partnership, until a successor replaces it
pursuant to the applicable provisions of this Indenture, and thereafter means
the successor.
"Consolidated EBITDA Coverage Ratio" as of any date of determination
means the ratio of (i) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters ending at least 5 days prior to the date
of such determination to (ii) Consolidated Interest Expense for such four fiscal
quarters; provided however, that (1) if the Company or any Subsidiary has issued
any Debt since the beginning of such period that remains outstanding as of such
date of determination or if the transaction giving rise to the need to calculate
the
4
Consolidated EBITDA Coverage Ratio is an issuance of Debt, or both, EBITDA and
Consolidated Interest Expense for such period shall be calculated after giving
effect on a pro forma basis to such Debt as if such Debt has been issued on the
first day of such period and the discharge of any other Debt repaid,
repurchased, defeased or otherwise discharged with the proceeds of such new Debt
as if such discharge had occurred on the first day of such period, (2) if since
the beginning of such period the Company or any Subsidiary shall have made any
Asset Disposition, the EBITDA for such period shall be reduced by an amount
equal to the EBITDA (if positive) directly attributable to the assets that were
the subject of such Asset Disposition for such period, or increased by an amount
equal to the EBITDA (if negative), directly attributable thereto for such
period, and Consolidated Interest Expense for such period shall be reduced by an
amount equal to the Consolidated Interest Expense directly attributable to any
Debt or Preferred Stock of the Company or any Subsidiary repaid, repurchased,
defeased or otherwise discharged with respect to the Company and its continuing
Subsidiary or from which the Company or such continuing Subsidiary has been
released by reason of the assumption thereof by the transferee of such Asset
Disposition, in connection with such Asset Dispositions for such period (or, if
the Capital Stock of any Subsidiary is sold, the Consolidated Interest Expense
for such period directly attributable to the Debt or Preferred Stock of such
Subsidiary to the extent the Company and its continuing Subsidiaries are no
longer liable for such Debt or Preferred Stock after such sale), (3) if since
the beginning of such period the Company or any Subsidiary (by merger or
otherwise) shall have made an Investment in any Subsidiary (or any person which
becomes a Subsidiary) or an acquisition or assets, including any acquisition of
assets occurring in connection with a transaction causing a calculation to be
made hereunder, which constitutes all or substantially all of an operating unit
of a business, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto (including the issuance of any
Debt) as if such Investment or acquisition occurred on the first day of such
period and (4) if since the beginning of such period any person (that
subsequently became a Subsidiary or was merged with or into the Company or any
Subsidiary since the beginning of such period) shall have made any Asset
Disposition or any Investment that would have required an adjustment pursuant to
clause (2) or (3) above if made by the Company or a Subsidiary during such
period, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto as if such Asset Disposition or
Investment occurred on the first day of such period. For purposes of this
definition, whenever pro forma effect is to be given to an acquisition of
assets, the amount of income or earnings relating thereto, and the amount of
Consolidated Interest Expense associated with any Debt or Preferred Stock issued
in connection therewith, shall be determined on a pro forma basis in good faith
by a responsible financial or accounting Officer of the Company. If any Debt
5
bears a floating rate of interest and is being given pro forma effect, the
interest of such Debt shall be calculated as if the rate in effect on the date
of determination had been the applicable rate for the entire period (taking into
account any Interest Rate Protection Agreement applicable to such Debt if such
Interest Rate Protection Agreement has a remaining term in excess of 12 months).
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its consolidated Subsidiaries, including (i)
interest expense attributable to Capital Lease Obligations, (ii) amortization of
debt discount and debt issuance cost, (iii) capitalized interest, (iv) non-cash
interest payments, (v) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing, (vi) net
costs under Interest Rate Protection Agreements (including amortization of
fees), (vii) Preferred Stock dividends in respect of all Preferred Stock held by
persons other than the Company or a Wholly Owned Subsidiary, (viii) interest
incurred in connection with investments in discontinued operations and (ix)
interest actually paid by the Company or any of its consolidated Subsidiaries
under any guarantee of Debt or other obligation of any other person.
"Consolidated Net Income" means, for any period, the net income of the
Company and its consolidated Subsidiaries; provided, however, that there shall
not be included in such Consolidated Net Income:
(i) any net income of any person if such person is not a Subsidiary,
except that (A) the Company's equity in the net income of any such person
for such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such person during such
period to the Company or a Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution to a Subsidiary,
to the limitations contained in clause (iii) below) and (B) the Company's
equity in a net loss of any such person for such period shall be included
in determining such Consolidated Net Income;
(ii) any net income of any person acquired by the Company or a
Subsidiary in a pooling of interests transaction for any period prior to
the date of such acquisition;
(iii) any net income of any Subsidiary that is subject to
restrictions, directly or indirectly, on the payment of dividends or the
making of distributions by such Subsidiary, directly or indirectly, to the
Company, except that (A) the Company's equity in the net income of any such
Subsidiary for such period shall be included in such Consolidated Net
6
Income up to the aggregate amount of cash actually distributed by such
Subsidiary during such period to the Company or another Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or other
distribution to another Subsidiary, to the limitation contained in this
clause) and (B) the Company's equity in a net loss of any such Subsidiary
for such period shall be included in determining such Consolidated Net
Income;
(iv) any gain (or loss) realized upon the sale or other disposition
of any property, plant or equipment of the Company or its consolidated
Subsidiaries (including pursuant to any sale-and-leaseback arrangement)
which is not sold or otherwise disposed of in the ordinary course of
business and any gain (or loss) realized upon the sale or other disposition
of any Capital Stock of any person; and
(v) the cumulative effect of a change in accounting principles.
"Consolidated Net Tangible Assets" means the total assets of the
Company and its Subsidiaries appearing on a consolidated balance sheet of the
Company and its Subsidiaries (prepared in accordance with generally accepted
accounting principles) as of any date selected by the Company not more than 90
days prior to the date of determination, after (i) adding thereto all
Attributable Debt of the Company and its Subsidiaries in respect of any sale and
leaseback arrangement not capitalized on such balance sheet, (ii) eliminating
all intercompany transactions and all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries and (iii) deducting
therefrom (without duplication of deductions):
(a) all liabilities of the Company and its Subsidiaries other than
Debt;
(b) the net book amount of all assets, after deducting any reserves
applicable thereto, which would be treated as intangible under generally
accepted accounting principles, including such items as goodwill,
trademarks, trade names, service marks, brand names, copyrights, patents
and licenses, and rights with respect to the foregoing, unamortized debt
discount and expense and organization expenses;
(c) any write-up in the book value of any asset on the books of the
Company or any Subsidiary resulting from a revaluation thereof subsequent
to the date of this Indenture (other than the write-up of the book value of
an asset made in accordance with purchase accounting under generally
accepted accounting principles in connection with the purchase of such
asset);
7
(d) all deferred charges (other than prepaid expenses); and
(e) all reserves, including, without limitation, reserves for
deferred income taxes, liabilities (fixed or contingent), depreciation,
obsolescence, depletion, insurance and inventory valuation, which appear or
under generally accepted accounting principles are required to appear on
such balance sheet.
"Consolidated Net Worth" of any person means the total of the amounts
shown on the balance sheet of such person and its consolidated Subsidiaries,
determined on a consolidated basis in accordance with generally accepted
accounting principles, as of the end of the most recent fiscal quarter of such
person ending at least 5 days prior to the taking of any action for the purpose
of which the determination is being made, as (i) if such person is a
partnership, the consolidated equity of the partners less (x) any amounts
attributable to Redeemable Stock and (y) any amounts attributable to
Exchangeable Stock and (ii) if such person is not a partnership, (A) the par or
stated value of all outstanding Capital Stock of such person plus (B) paid-in
capital or capital surplus relating to such Capital Stock plus (C) any retained
earnings or earned surplus less (1) any accumulated deficit, (2) any amounts
attributable to Redeemable Stock and (3) any amounts attributable to
Exchangeable Stock.
"Credit Facility" means the credit facility under that certain
Revolving Credit Agreement, dated as of November 2, 1987, by and between the
Company and Wachovia Bank and Trust Company, N.A., including any related notes,
instruments and agreements executed in connection therewith, and which may be
replaced with a facility between the Company and certain lenders, providing for
up to $100.0 million of credit borrowings, including any related notes,
instruments and agreements executed in connection therewith, in each as amended,
modified, renewed, refunded, replaced or refinanced from time to time.
"Debt" of any person means, without duplication,
(i) the principal of and premium, if any, in respect of (A)
indebtedness of such person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such person is responsible or liable;
(ii) all Capital Lease Obligations of such person;
(iii) all obligations of such person issued or assumed as the
deferred purchase price of property, all conditional sale obligations of
such person and all obligations of such person under any title retention
8
agreement (but excluding trade accounts payable arising in the ordinary
course of business);
(iv) all obligations of such person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit
securing obligations (other than obligations described in (i) through (iii)
above) entered into in the ordinary course of business of such person to
the extent such letters of credit are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the third
Business Day following receipt by such person of a demand for reimbursement
following payment on the letter of credit);
(v) the amount of all obligations of such person with respect to the
redemption, repayment or other repurchase of any Redeemable Stock (but
excluding any accrued dividends);
(vi) all obligations of the type referred to in clauses (i) through
(v) of other persons and all dividends of other persons for the payment of
which, in either case, such person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
agreement which has the economic effect of a guarantee; and
(vii) all obligations of the type referred to in clauses (i) through
(vi) of other persons secured by any Lien on any property or asset of such
person (whether or not such obligation is assumed by such person), the
amount of such obligation being deemed to be the lesser of the value of
such property or assets or the amount of the obligation so secured.
"Default" means any event that is, or after notice or passage of time
or both would be, and Event of Default.
"Depository" means, (i) with respect to any Global Security offered
for sale solely outside of the United States, a common depository for Xxxxxx
Guaranty Trust Company of New York, Brussels office, operator of the Euro-clear
System, and Centrale de Livraison de Valeurs Mobilieres. S.A., and (ii) with
respect to any Global Security offered for sale in the United States, a clearing
agency registered under the Exchange Act, which shall in either case be
designated by the Company pursuant to Section 2.09.
"Disqualified Capital Stock" means any Capital Stock that is
Redeemable Stock or Exchangeable Stock.
9
"EBITDA" for any period means the Consolidated Net Income for such
period, plus the following to the extent deducted in calculating such
Consolidated Net Income: (i) income tax expense, (ii) Consolidated Interest
Expense, (iii) depreciation expense, (iv) amortization expense and (v) all other
noncash items reducing Consolidated Net Income, less all noncash items
increasing Consolidated Net Income.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchangeable Stock" means any Capital Stock that is exchangeable or
convertible into another security (other than Capital Stock of the Company that
is neither Exchangeable Stock nor Redeemable Stock).
"Finance Corp." means BCP Finance Corporation, a Delaware corporation,
and its successors.
"Global Security" means a Security executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with this Indenture including
Section 2.09, and which shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all the outstanding Securities or a
portion thereof, in either case having the same terms as other Securities.
"Global Security" shall include any temporary Global Security and any permanent
Global Security.
"Guarantee" means any obligation, contingent or otherwise, of any
person directly or indirectly guaranteeing any Debt or other obligation of any
person and any obligation, direct or indirect, contingent or otherwise, of such
person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation of such person (whether arising by
virtue of partnership arrangements, or by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Debt or other obligation of the payment
thereof (in whole or in part); provided, however, that the term "Guarantee"
shall not include endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as a verb has a corresponding meaning.
"Holder" or "Securityholder" means the person in whose name a Security
is registered on the Registrar's books.
"Holding Company" means Xxxxxx Chemicals and Plastics Limited
Partnership, a Delaware limited partnership, and its successors.
10
"Independent Committee" means a standing committee of the Board of
Directors composed entirely of Independent Directors; provided that if there is
no such standing committee, then "Independent Committee" means all the
Independent Directors.
"Independent Directors" means members of the Board of Directors who
are neither officers nor employees of the Company or any of its Affiliates (or,
if the Company is a limited or general partnership, of any general partner
thereof or any of its Affiliates).
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Interest Rate Protection Agreement" means any interest rate swap
agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect the Company or any Subsidiary against
fluctuations in interest rates.
"Investment" in any person means any loan or advance to, any
acquisition of Capital Stock, obligation or other security of, or capital
contribution or other investment in, such person.
"issue" means issue, assume, guarantee, incur or otherwise become
liable for; provided, however, that any Debt or Capital Stock or a person
existing at the time such person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be issued by such
Subsidiary at the time it become a Subsidiary.
"Issuers" means the Company and Finance Corp., as joint and several
obligors under the Securities.
"Lien" means any mortgage, pledge, security interest, conditional sale
or other title retention agreement or other similar lien.
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only as
and when received, and excluding any other consideration received in the form of
assumption by the acquiring person of Debt or other obligations relating to such
properties or assets or received in any other noncash form) therefrom, in each
case net of all legal, title and recording tax expenses, commissions and other
fees and expenses incurred, and all Federal, state, provincial, foreign and
local taxes required to be accrued as a liability under generally accepted
accounting principles, as a consequence of such Asset Disposition, and in each
case net of all payments made on any Debt which is secured by any assets subject
to such Asset Disposition, in accordance with the terms of any lien upon or
11
other security agreement of any kind with respect to such assets, or which must
by its terms, or in order to obtain a necessary consent to such Asset
Disposition, or by applicable law be repaid out of the proceeds from such Asset
Disposition, and net of amounts thereof allocable to minority interest holders
in Subsidiaries.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer, the Principal Accounting Officer or the Secretary of
the Company (or, if the Company is a limited partnership or a general
partnership, of any of its general partners or partners, respectively,
authorized to act on behalf of such limited partnership or general partnership,
as the case may be, in connection with this Indenture) or of Finance Corp., as
the case may be.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from legal counsel, which
may be an employee of or counsel to the Company or the Trustee.
"Pari Passu Debt" means any Debt of the Company (other than the
Securities), whether or not secured, that is pari passu in right of payment to
the Securities.
"Permitted Holders" means, as of the date of determination, any and
all of (a) Xxxxxx and its Subsidiaries, (b) Kohlberg Kravis Xxxxxxx & Co., its
successors and its Affiliates and (c) (i) any officer or other member of
management employed by Xxxxxx, BCPM, the Company or any Subsidiary for the
12-month period prior to the date of determination; (ii) any persons described
in clause (i) who have retired (including as the result of disability) after the
initial date of this Indenture from the employment of Xxxxxx, BCPM, the Company
or any Subsidiary in the ordinary course of business; (iii) family members or
the relatives of the persons described in clauses (i) and (ii); (iv) any trusts
created for the benefit of the persons described in clauses (i), (ii), (iii) or
(v); (v) in the event of the incompetence or death of any of the persons
described in clauses (i), (ii) and (iii), such person's estate, executor,
administrator, committee or other personal representative, or beneficiaries, in
each case who at any particular date shall beneficially own or have the right to
acquire, directly or
12
indirectly, Capital Stock and (vi) any person, the management of which is
controlled by one or more persons described in clause (i) or (ii); provided,
however, that in connection with the transaction that otherwise would constitute
a Change of Control were the persons described in this clause (c) not Permitted
Holders, any Debt incurred as a result thereof shall not be recourse to any of
the assets of the Company or any Subsidiary. The management of a person shall be
deemed to be controlled by the chief executive officer (or equivalent executive)
of such person.
"Permitted Investments" shall mean (i) investments in direct
obligations of the United States of America or any agency or instrumentality
thereof maturing within one year of the date of acquisition thereof, (ii)
investments in certificates of deposit maturing within one year of the date of
acquisition thereof issued by a bank or trust company which is organized under
the laws of the United States or any state thereof having capital, surplus and
undivided profits aggregating in excess of $50.0 million or the debt of which is
rated P-1 (or higher) by Xxxxx'x or A-1 (or higher) by S&P and (iii) investments
in commercial paper given the highest rating by two established national credit
rating agencies and maturing not more than nine months from the date of
acquisition thereof.
"Permitted Liens" means (i) Liens that exist on the date of this
Indenture, (ii) Liens on property or assets (or any income or profits therefrom)
existing at the time of acquisition of such property or assets, (iii) Liens on
property or assets (or any income or profits therefrom) of a person existing at
the time such person is merged into or consolidated with or acquired by the
Company or its Subsidiaries, (iv) Liens in favor of any governmental authority
to secure any payment obligation under any statute, (v) Liens of landlords and
Liens of carriers, warehousemen, mechanics and materialmen incurred in the
ordinary course of business, (vi) Liens incurred for the purpose of financing
all or any part of the purchase price or the cost of construction or improvement
of the property or assets subject to such Liens; provided, however, that such
Lien shall not extend to or cover any other property or assets other than such
property or assets or any improvements thereon and shall attach to such
property, assets, or improvements within 180 days of the acquisition or
construction thereof, (vii) Liens incurred to secure (or to obtain letters of
credit that secure) the performance of tenders, statutory obligations, surety or
appeal bonds, bids, leases, performance or return-of-money bonds, purchase,
construction or sale contracts or other obligations of a like nature incurred in
the ordinary course of business, (viii) Liens on Capital Stock of a Subsidiary
and Liens on intercompany notes issued by such Subsidiary to the Company, in
either case to secure Debt incurred by such Subsidiary in connection with the
Company's acquisition of such Subsidiary or the business of such Subsidiary,
(ix) Liens securing any Debt
13
owed to the Company or any Subsidiary, (x) Liens on any Accounts Receivable or
inventory granted to secure Debt issued pursuant to the Credit Facility (or any
Refinancing Agreement) referred to in clause (b)(1) or pursuant to clause (b)(5)
of Section 4.04, (xi) Liens to secure any extension, renewal, refunding or
refinancing (or successive extensions, renewals, refundings or refinancings), in
whole or in part, of any Debt secured by Liens referred to in the foregoing
clauses (i) through (x) so long as such Liens do not extend to any other
property or assets and the aggregate principal amount of the Debt so secured is
not increased, and (xii) Liens securing Debt of a person, the aggregate
principal amount of which, together with the aggregate principal amount of all
other Debt of such person secured by Liens (excluding Debt secured by Liens
permitted in the foregoing clauses (i) through (xi)) and the aggregate amount of
Attributable Debt deemed to be outstanding in respect of all sale and leaseback
transactions permitted by clause (i) of Section 4.09 (excluding any such sale
and leaseback transactions otherwise permitted by the foregoing clauses (i)
through (xi)), does not exceed 5% of Consolidated Net Tangible Assets.
"person" means any individual, corporation, partnership, association,
joint-stock company, limited liability company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity.
"Preferred Stock", as applied to the Capital Stock of any person,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such person,
over the Capital Stock of any other class of such person.
"principal" of a Security means the principal of the Security plus the
premium, if any, payable on the Security which is due or overdue or is to become
due at the relevant time.
"Redeemable Stock" means any Capital Stock that by its terms or
otherwise is required to be redeemed prior to the first anniversary of the
Stated Maturity of the Securities or is redeemable at the option of the holder
thereof at any time prior to the first anniversary of the Stated Maturity of the
Securities.
"Refinance" means, in respect of any Debt or Preferred Stock, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue Debt or Preferred Stock in exchange or replacement for, such Debt or
Preferred Stock. "Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Agreement" means any credit agreement, indenture or other
agreement pursuant to which the Company or any Subsidiary Refinances, in whole
or in part, Debt of the Company
14
or any Subsidiary issued under clause (b)(1) of Section 4.04; provided, however,
that the principal amount of the Refinancing Debt issued pursuant to such
Refinancing Agreement may not exceed the principal amount of the Debt so
Refinanced.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities issued under this Indenture.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X as promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the principal of such
security is due and payable, including pursuant to any mandatory redemption
provision.
"Subordinated Obligation" means any Debt of the Company (whether
outstanding on the date hereof or hereafter incurred) that is subordinate or
junior in right of payment to the Securities.
"Subsidiary" means any corporation, association, partnership or other
business entity of which more than 50% of the total voting power of the
outstanding Capital Stock (or other interests entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, general
partners, managers, managing members, managing partners or trustees thereof or,
if such persons are not elected, to vote on any matter that is submitted to the
vote of all persons holding ownership interests in such entity) is at the time
owned or controlled, directly or indirectly, by (i) the Company, (ii) the
Company and one or more Subsidiaries or (iii) one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. SS
------
77aaa-77bbbb) as in effect on the date of this Indenture.
"Total Debt" means, as of any date of determination, the total Debt of
the Company and its consolidated Subsidiaries .
"Trustee" means The Chase Manhattan Bank (National Association), until
a successor replaces it pursuant to the applicable provisions of this Indenture,
and thereafter means the successor.
"Trust Officer" means the Chairman of the Board, the President or any
officer or assistant officer of the
15
Trustee assigned by the Trustee to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Voting Stock" of any person means, with respect to a corporation, all
classes of Capital Stock of such corporation then outstanding and normally
entitled to vote in the election of directors or, with respect to a partnership
(whether general or limited), any general partner interest in such partnership.
"Wholly Owned Subsidiary" of any person means a Subsidiary of such
person all the outstanding Capital Stock or other ownership interests or, in the
case of a limited partnership, all the partners' Capital Stock (other than up to
a 2% general partner interest), of which (other than directors' qualifying
shares) shall at the time be owned by such person or by one or more Wholly Owned
Subsidiaries of such person.
SECTION 1.02. Other Definitions.
-----------------
Defined in
Term Section
---- ----------
"Bankruptcy Law"........................................... 6.01
"covenant defeasance option"............................... 8.01(b)
"Custodian"................................................ 6.01
"Event of Default"......................................... 6.01
"legal defeasance option".................................. 8.01(b)
"Legal Holiday"............................................ 10.08
"Paying Agent"............................................. 2.03
"Registrar"................................................ 2.03
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
16
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuers and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
---------------------
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles, and the
term "generally accepted accounting principles" with respect to any
determination required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the date of
such determination;
(3) "or" is not exclusive;
(4) "including" means including, without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured debt shall not be deemed to be subordinate or junior to
secured debt merely by virtue of its nature as unsecured debt;
(7) the principal amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the issuer dated such date prepared in
accordance of principal on such security shall be deemed to be the issuance
of Debt; and
(8) the principal amount of Redeemable Stock shall be (i) the maximum
liquidation value of such Redeemable Stock or (ii) the maximum mandatory
redemption or mandatory repurchase price with respect to such Redeemable
Stock, whichever is greater.
17
ARTICLE II
The Securities
--------------
SECTION 2.01. Form and Dating. The Securities and the Trustee's
---------------
certificate of authentication with respect thereto shall be substantially in the
form of Exhibit A hereto, which is hereby incorporated in and expressly made a
part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule, agreements to which the
Issuers are subject, if any, or usage (provided that any such notation legend or
endorsement is in a form acceptable to the Issuers). Each Security shall be
dated the date of its authentication. The terms of the Securities set forth in
Exhibit A are part of the terms of this Indenture.
SECTION 2.02. Execution and Authentication. Two Officers shall sign
----------------------------
the Securities for each of the Issuers by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate and deliver Securities for original
issue in an aggregate principal amount of $200,000,000, upon a written order of
the Company and Finance Corp. signed by two Officers or by an Officer and an
Assistant Treasurer or an Assistant Secretary of the Company and Finance Corp.
Such order shall specify the amount of the Securities to be authenticated and
the date on which the original issue of Securities is to be authenticated. The
aggregate principal amount of Securities outstanding at any time shall not
exceed such amount as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Securities. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.
SECTION 2.03. Registrar and Paying Agent. The Issuers shall maintain
--------------------------
an office or agency where Securities may be
18
presented for registration of transfer or for exchange (the "Registrar") and an
office or agency where Securities may be presented for payment (the "Paying
Agent"). The Registrar shall keep a registrar of the Securities and of their
transfer and exchange. The Issuers may have one or more co-registrars and one or
more additional paying agents. The term "Paying Agent" includes any additional
paying agent.
The Issuers shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Issuers shall notify
the Trustee of the name and address of any such agent. If the Issuers fail to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any Subsidiary or Affiliate may act as Paying Agent, Registrar,
co-registrar or transfer agent.
The Issuers initially appoint the Trustee as Registrar and Paying
Agent in connection with the Securities.
SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to each due
-----------------------------------
date of the principal and interest on any Security, the Issuers shall deposit
with the Paying Agent a sum sufficient to pay such principal and interest when
so becoming due. The Issuers shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Securityholders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest on the Securities and shall notify the
Trustee of any default by the Issuers in making any such payment. If the Company
or a domestically incorporated Wholly Owned Subsidiary acts as Paying Agent, it
shall segregate the money held by it as Paying Agent and hold it as a separate
trust fund. The Issuers at any time may require a Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed by the Paying
Agent. Upon complying with this Section, the Paying Agent shall have no further
liability for the money delivered to the Trustee.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as
--------------------
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Issuers shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.
19
SECTION 2.06. Transfer and Exchange. The Securities shall be issued
---------------------
in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer. When a Security is presented to the
Registrar or a co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of Section 8-401(1)
of the Uniform Commercial Code are met. When Securities are presented to the
Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Securities of other denominations, the Registrar shall make
the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Issuers shall execute and the
Trustee shall authenticate Securities at the Registrar's or co-registrar's
request. The Issuers may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges. The Issuers shall not be required to
make and the Registrar need not register transfers or exchanges of Securities
selected for redemption (except, in the case of Securities to be redeemed in
part, the portion thereof not to be redeemed) or any Securities for a period of
15 days before a selection of Securities to be redeemed or any Securities 15
days before an interest payment date.
Prior to the due presentation for registration of transfer of any
Security, the Issuers, the Trustee, the Paying Agent, the Registrar or any co-
registrar may deem and treat the person in whose name a Security is registered
as the absolute owner of such Security for the purpose of receiving payment of
principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Issuers,
the Trustee, the Paying Agent, the Registrar or any co-registrar shall be
affected by notice to the contrary.
SECTION 2.07. Replacement Securities. If a mutilated Security is
----------------------
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Issuers shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee. If required by the Trustee or
the Issuers, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Issuers and the Trustee to protect the Issuers, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced. The Issuers and the Trustee may charge the
Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the Issuers.
SECTION 2.08. Outstanding Securities. Securities outstanding at any
----------------------
time are all Securities authenticated by the
20
Trustee except for those cancelled by it, those delivered to it for cancellation
and those described in this Section as not outstanding. A Security does not
cease to be outstanding because the Company or an affiliate of the Company holds
the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Issuers receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Securities
to be redeemed or maturing, as the case may be, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue.
SECTION 2.09. Temporary Securities; Global Securities. (a) Until
---------------------------------------
definitive Securities are ready for delivery, the Issuers may prepare and the
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Issuers consider appropriate for temporary Securities. Every temporary
Security shall be executed by the Issuers and authenticated by the Trustee, and
registered by the Registrar, upon the same conditions, and with like effect, as
a definitive Security. Without unreasonable delay, the Issuers shall prepare and
the Trustee shall authenticate definitive Securities and deliver them in
exchange for temporary Securities. All references herein to "definitive
Securities" shall be deemed to apply equally to permanent Global Securities.
(b) If the Issuers shall advise the Trustee that the Securities are
to be issued as one or more Global Securities, then the Issuers shall execute
and the Trustee shall, in accordance with Section 2.02, authenticate and deliver
to the Depositary or pursuant to the Depositary's instruction one or more
Global Securities. Each Global Security shall bear a legend substantially to the
following effect: "Except as otherwise provided in Section 2.09 of the
Indenture, this Security may be transferred, in whole but not in part, only to
another nominee of the Depositary or to a successor Depositary or to a nominee
of successor Depositary."
(c) Notwithstanding any other provision of this Section 2.09 or of
Section 2.06, except for exchanges of Global Securities as provided in Section
2.09(e), a Global Security may be transferred, in whole but not in part and in
the manner provided in Section 2.06, only to another nominee of the Depositary,
or to a successor Depositary selected or approved by the Issuers or to a nominee
of such successor Depositary.
21
(d) If at any time the Depositary notifies the Issuers that it is
unwilling or unable to continue as Depositary or, with respect to a Depositary
contemplated by clause (ii) of the definition thereof, if at any time the
Depositary shall no longer be registered or in good standing under the Exchange
Act or other applicable statute or regulation and, in any such case, a successor
Depositary is not appointed by the Issuers within 90 days after the Issuers
receive such notice or becomes aware of such condition, as the case may be, this
Section 2.09 shall no longer be applicable to the Securities and the Issuers
will execute, and the Trustee will authenticate and deliver, Securities in
definitive form, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security in exchange for such
Global Security.
(e) Upon any exchange of a part of a temporary or permanent Global
Security for definitive Securities, the temporary or permanent Global Security,
as the case may be, shall be endorsed by the Trustee or an authenticating agent
for the Trustee to reflect the reduction of its principal amount by an amount
equal to the aggregate principal amount of definitive Securities so exchanged
and endorsed.
SECTION 2.10. Cancellation. The Issuers at any time may deliver
------------
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and deliver a certificate of such destruction to the Company unless
the Company directs the Trustee to deliver cancelled Securities to the Company.
The Issuers may not issue new Securities to replace Securities they have
redeemed, paid or delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Issuers default in a
------------------
payment of interest on the Securities, the Issuers shall pay defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
manner. The Issuers may determine to pay the defaulted interest to the persons
who are Securityholders on a subsequent special record date, which date shall be
at least five Business Days prior the payment date. If the Issuers so determine,
the Issuers shall fix or cause to be fixed any such special record date and
payment date, and, at least 15 days before any such special record date, the
Issuers shall mail to each Securityholder a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
22
ARTICLE III
Redemption
----------
Section 3.01. Notices to Trustee. If the Issuers elect to redeem
------------------
Securities pursuant to paragraph 5 of the Securities, they shall notify the
Trustee in writing of the redemption date and the principal amount of Securities
to be redeemed.
The Issuers shall give each notice to the Trustee provided for in this
Section at least 45 days before the redemption date and at least 15 days prior
to the notice mailed to Holders pursuant to Section 3.03, unless the Trustee
consents to a shorter period, provided, however, that if the Issuers have
incurred any obligation to repurchase the Securities pursuant to Section 4.11,
then such notice to the Trustee or any Securityholder shall be given
simultaneously with the notice given to the Securityholders relating to a Change
of Control. Such notice shall be accompanied by an Officers' Certificate from
the Company to the effect that such redemption will comply with the conditions
herein. If fewer than all the Securities are to be redeemed, the record date
relating to such redemption shall be selected by the Issuers given to the
Trustee, which record date shall be not less than 15 days after the date of
notice to the Trustee.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer than
--------------------------------------
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot or by a method that complies with applicable
legal and securities exchange requirements, if any, and that the Trustee
considers fair and appropriate and in accordance with methods generally used at
the time of selection by fiduciaries in similar circumstances. The Trustee shall
make the selection from outstanding Securities not previously called for
redemption. The Trustee may select for redemption portions of the principal of
Securities that have denominations larger than $1,000. Securities and portions
thereof that the Trustee selects shall be in amounts of $1,000 or a whole
multiple of $1,000. Provisions of this Indenture that apply to Securities called
for redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Issuers promptly of the Securities or portions of
Securities to be redeemed.
Section 3.03. Notice of Redemption. At least 30 days but not more
--------------------
than 60 days before a date for redemption of Securities, the Issuers shall mail
a notice of redemption by first-class mail to each Holder of Securities to be
redeemed.
The notice shall identify the Securities to be redeemed pursuant to
paragraph 5 thereof and shall state:
23
(1) the redemption date;
(2) the redemption price of and accrued and unpaid interest on such
Securities;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be redeemed,
the identification and principal amounts of the particular Securities to be
redeemed;
(6) that, unless the Issuers default in making such redemption
payment or the Paying Agent is prohibited from making such payment pursuant
to the terms of this Indenture, interest on Securities (or portion thereof)
called for redemption ceases to accrue on and after the redemption date;
and
(7) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' name and at the Issuers' expense. In such event, the
Issuers shall provide the Trustee with the information required by clauses (1)
through (3).
SECTION 3.04. Effect of Notice of Redemption. Once notice of
------------------------------
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued and unpaid interest to the redemption
date. Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to the redemption
---------------------------
date, the Issuers shall deposit with the Paying Agent (or, if the Company or a
domestically incorporated Wholly Owned Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of and
accrued and unpaid interest on all Securities to be redeemed on that date other
than Securities or portions of Securities called for redemption which have been
delivered by the Issuers to the Trustee for cancellation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
---------------------------
Security that is redeemed in part, the Issuers
24
shall execute and the Trustee shall authenticate for the Holder (at the
Issuers's expense) a new Security equal in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE IV
Covenants
---------
SECTION 4.01. Payment of Securities. The Issuers shall promptly pay
---------------------
the principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Securityholders on that
date pursuant to the terms of this Indenture.
The Issuers shall pay interest on overdue principal at the rate borne
by the Securities plus 1% per annum, and they shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
The obligations of the Issuers under this Section 4.01 shall be joint
and several.
SECTION 4.02. SEC Reports. The Issuers shall file with the Trustee
-----------
and provide Securityholders, within 15 days after they file them with the SEC,
copies of their annual report or reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which the Issuers are required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act. In the event the
Company or Finance Corp. is at any time no longer subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, it shall continue to
provide the Trustee with reports containing substantially the same information
as would have been required to be filed with the SEC had it continued to have
been subject to such reporting requirements. In such event, such reports shall
be provided at the times the Company or Finance Corp. would have been required
to provide reports had it continued to have been subject to such reporting
requirements. The Issuers also shall comply with the other provisions of TIA (S)
314(a).
SECTION 4.03. Limitation on Restricted Payments. (a) The Company
----------------------------------
shall not, and shall not permit any of its Subsidiaries, directly or indirectly,
to: (1) declare or pay any dividend or make any distribution on or in respect of
its Capital Stock, including any payment in connection with any merger or
consolidation involving the Company (except dividends or
25
distributions payable solely in its Capital Stock (other than Disqualified
Capital Stock) or payable to the Company or a Subsidiary), (2) purchase, redeem
or otherwise acquire or retire for value any Capital Stock of the Company or of
any direct or indirect parent of the Company, (3) purchase, repurchase, redeem,
defease or otherwise acquire or retire for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment, and Subordinated
Obligations (other than the purchase, repurchase or other acquisition of
Subordinated Obligations purchased in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one
year of the date of acquisition) or (4) make any Investment in any Affiliate of
the Company other than a Subsidiary or a person which will become a Subsidiary
as a result of any such Investment (any such dividend, distribution, purchase,
redemption, repurchase, defeasance, other acquisition, retirement or Investment
being herein referred to as a "Restricted Payment"), unless, at the time of such
Restricted Payment:
(i) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(ii) the Consolidated EBITDA Coverage Ratio exceeds 3.0 to 1;
(iii) Total Debt does not exceed 60% of Consolidated Net Tangible
Assets on a pro forma basis as of the end of the most recently completed
fiscal quarter ending at least 5 days prior to the date on which such
Restricted Payment is made; and
(iv) such Restricted Payment (the amount of any such payment, if
other than cash, to be determined by the Board of Directors, whose
determination shall be conclusive and evidenced by a resolution in an
Officers' Certificate from the Company delivered to the Trustee), together
with the aggregate of all other Restricted Payments (other than any
Restricted Payments permitted by the provisions of clauses (i), (ii) or
(iii) of Section 4.03 (b)) made by the Company and its Subsidiaries in the
fiscal quarter during which such Restricted Payment is made shall not
exceed an amount equal to Available Cash of the Company for the immediately
preceding fiscal quarter.
(b) The provisions of this Section shall not prohibit:
(i) Any purchase, redemption, repurchase, defeasance, other
acquisition or retirement (a "purchase of redemption") of Capital Stock or
Subordinated Obligations of the Company made by exchange for, or out of the
proceeds of the substantially concurrent sale (other than to a Subsidiary)
of, Capital Stock of the Company (other than Disqualified
26
Capital Stock); provided, however, that (A) such purchase or redemption shall be
excluded in the calculation of the amount of Restricted Payments and (B) the Net
Cash Proceeds from such sale (to the extent so used) shall be excluded in the
calculation of the amount of Available Cash in clause Section 4.03 (a) (iv);
(ii) Any purchase or redemption of Subordinated Obligations of the
Company made by exchange for, or out of the proceeds of the substantially
concurrent sale (other than to a Subsidiary) of, Debt of the Company; provided,
however, that such Debt shall be subordinated to the Securities to at least the
same extent as the Subordinated Obligations so exchanged, purchased or redeemed,
shall have a Stated Maturity later than the earlier of the Stated Maturity of
the Securities and the Stated Maturity such Subordinated Obligations and shall
have an Average Life greater than the lesser of the Average Life of the
Securities and the Average Life of such Subordinated Obligations; provided
further, however, that (A) such purchase or redemption shall be excluded in the
calculation of the amount of Restricted Payments and (B) the Net Cash Proceeds
from such sale (to the extent so used) shall be excluded in the calculation of
the amount of Available Cash in Section 4.03(a) (iv);
(iii) Any purchase or redemption of Subordinated Obligations from Net
Available Cash to the extent permitted under Section 4.06; provided,
however, that (A) such purchase or redemption shall be excluded in the
calculation of the amount of Restricted Payments and (B) the Net Available Cash
from such sale (to the extent so used) shall be excluded from the definition of
Available Cash in Section 4.03 (a) (iv); or
(iv) Dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with this provision; provided, however, that at the time of payment of such
dividend, no further Default shall have occurred and be continuing (or
would result therefrom); provided further, however, that such dividend
shall be included (when paid, but not when declared) in the calculation of
the amount of Restricted Payments.
(c) Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate of the Company stating
that such Restricted Payment is permitted and setting forth the basis upon which
the calculations required by this Section 4.03 were computed, which calculations
may be based upon the Company's latest available financial statements.
27
SECTION 4.04. Limitation on Debt. (a) The Company shall not, and
------------------
shall not permit any of its Subsidiaries to, directly or indirectly, issue any
Debt unless, at the time of such issuance, the Consolidated EBITDA Coverage
Ratio as of the date such Debt is issued exceeds 2.5 to 1.
(b) Notwithstanding the foregoing, the Company and its Subsidiaries may
issue the following Debt:
(1) (A) Commercial paper of the Company having a maturity of 12
months or less in an aggregate principal amount not to exceed $50.0
million outstanding at any time and (B) Debt issued pursuant to the Credit
Facility (or any Refinancing Agreement);
(2) Debt issued to and held by the Company or a Wholly Owned
Subsidiary; provided, however, that any subsequent issuance or transfer of
any Capital Stock that results in any such Wholly Owned Subsidiary ceasing
to be a Wholly Owned Subsidiary or any transfer of such Debt (other than to
the Company or a Wholly Owned Subsidiary) shall be deemed, in each case, to
constitute the issuance of such Debt by the issuer thereof;
(3) The Securities and Debt issued in exchange for, or the proceeds
of which are used to Refinance, any Debt permitted by this clause (3);
provided, however, that (i) the principal amount of the Debt so issued
shall not exceed the principal amount of the Debt so Refinanced and (ii)
the Debt so issued (A) shall have a Stated Maturity no earlier than the
Stated Maturity of the Debt so Refinanced and (B) shall have an Average
Life no less than the remaining Average Life of the Debt so Refinanced;
(4) Debt (other than Debt described in clause (1), (2) or (3) above)
outstanding on the date on which the Securities were originally issued or
Debt issued in exchange for, or the proceeds of which are used to
Refinance, any Debt permitted by this clause (4) or permitted by clause (a)
above; provided, however, that the principal amount of the Debt so issued
shall not exceed the principal amount of the Debt so Refinanced and the
Debt so issued (A) shall have a Stated Maturity no earlier than the Stated
Maturity of the Debt so Refinanced and (B) shall have an Average Life no
less than the remaining Average Life of the Debt so Refinanced; and
(5) Debt in an aggregate principal amount which, together with all
other Debt of the Company then outstanding (other than Debt permitted by
clauses (1) through (4) above or clause (a) above) does not exceed $20.0
million (less the amount of any Debt and Preferred Stock of Subsidiaries
then
28
outstanding and incurred pursuant to clause (e) of Section 4.07).
SECTION 4.05. Limitation on Restrictions on Distributions from
------------------------------------------------
Subsidiaries. The Company shall not permit any of its Subsidiaries to create or
------------
permit to exist or become effective any consensual encumbrance or restriction on
the ability of any Subsidiary to (1) pay dividends or make any other
distributions on its Capital Stock or pay any Debt or other obligation owed to
the Company, (2) make any loans or advances to the Company or (3) transfer any
of its tangible property or tangible assets to the Company, except:
(a) Any encumbrance or restriction pursuant to an agreement in effect
at or entered into on the date the Securities are issued, including any
encumbrance or restriction existing pursuant to the Credit Facility in
effect on the date the Securities are issued;
(b) Any encumbrance or restriction with respect to a Subsidiary
pursuant to an agreement relating to any Debt issued by such Subsidiary on
or prior to the date on which such Subsidiary was acquired by the Company
(other than Debt issued as consideration in, or to provide all or any
portion of the funds utilized to consummate, the transaction or series of
related transactions pursuant to which such Subsidiary became a Subsidiary
or was acquired by the Company) and outstanding on such date;
(c) Any encumbrance or restriction pursuant to an agreement effecting
a Refinancing of Debt issued pursuant to an agreement referred to in clause
(a) or (b) of this Section 4.05 or contained in any amendment to an
agreement referred to in such clause (a) or (b); provided, however, that
the encumbrances and restrictions contained in any of such refinancing
agreement or amendment are no less favorable to the Securityholders than
encumbrances and restrictions contained in such agreements;
(d) In the case of clause (3) above, any such encumbrance or
restriction consisting of the covenant set forth in Section 4.10 or other,
similar covenants or agreements; and
(e) In the case of clause (3) above, restrictions contained in
security agreements securing Debt of a Subsidiary to the extent such
restrictions restrict the transfer of the property subject to such security
agreements.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.
--------------------------------------------------
The Company shall not, and shall not permit any of its Subsidiaries to, make any
Asset Disposition unless (i)
29
the Company or such Subsidiary receives consideration at the time of such Asset
Disposition at least equal to the fair market value, as determined in good faith
by the Board of Directors or the board of directors of the relevant Subsidiary
(including as to the value of all non-cash consideration), of the shares and
assets subject to such Asset Disposition and at lease 80% of the consideration
thereof received by the Company or such Subsidiary is in the form of cash or
cash equivalents or consists of assets in which the Company or such Subsidiary,
as the case may be, would have been able to invest pursuant to the election set
forth in clause (B) below, and (ii) an amount equal to 100% of the Net Available
Cash from such Asset Disposition is applied by the Company (or such Subsidiary,
as the case may be) (A) first, to the extent the Company elects (or is required
by the terms of any Pari Passu Debt), to prepay, repay or purchase Pari Passu
Debt or Debt of a Wholly Owned Subsidiary or such Subsidiary elects (or is
required by the terms of any Pari Passu Debt) to prepay, repay or purchase Debt
or Pari Passu Debt (in each case other than Debt owed to the Company or an
Affiliate of the Company) within 60 days from the later of the date of such
Asset Disposition or the receipt of such Net Available Cash; (B) second, to the
extent of the balance of such Net Available Cash after any application in
accordance with clause (A), at the election of the Company or such Subsidiary,
as the case may be, to acquire assets to replace its assets that were the
subject of such Asset Disposition or to acquire assets (or to make improvements
to existing assets) that (as determined by the Board of Directors or the board
of directors of such Subsidiary, as the case may be) will be used in the
business of the Company and its Subsidiaries existing on the date of original
issuance of the Securities or in businesses reasonably related thereto, in each
case by the later of (x) the date that is 180 days from the date of such Asset
Disposition or (y) the date of the receipt of such Net Available Cash (the later
of (x) and (y) being hereinafter called the "New Asset Acquisition Date"); (C)
third, to the extent of any balance of such Net Available Cash after application
and in accordance with clauses (A) and (B), to make an offer (the "Net Available
Cash Offer") pursuant to and subject to the conditions contained in this
Indenture, to the holders of the Securities (and to holders of other Pari Passu
Debt designated by the Company) to purchase Securities (and such other Pari
Passu Debt) at a purchase price of 100% of the principal amount thereof (without
premium) plus accrued and unpaid interest (or in respect of such other Pari
Passu Debt such lesser price, if any, as may be provided for by the terms of
such other Pari Passu Debt) (the aggregate amount of such purchase price being
hereinafter called the "Net Available Cash Payment") and (D) fourth, to the
extent of the balance of such Net Available Cash after application in accordance
with clauses (A), (B) and (C), to any application not prohibited by this
Indenture; provided, however, that in connection with any prepayment, repayment
or purchase of Debt pursuant to clause (A) or (C) above, the Company or such
Subsidiary shall retire such Debt and shall cause the related loan commitment
(if any) to be
30
permanently reduced in an amount equal to the principal amount so prepaid,
repaid or purchased. Notwithstanding the foregoing provisions of this paragraph,
the Company and its Subsidiaries shall not be required to apply any Net
Available Cash (other than Net Available Cash from an Asset Disposition
consisting of a sale and leaseback transaction that the Company has elected to
treat as an Asset Disposition pursuant to clause (ii) of Section 4.09) in
accordance with this paragraph except to the extent that the aggregate Net
Available Cash from all Asset Dispositions which are not applied in accordance
with this paragraph exceeds $10.0 million. Pending application of Net Available
Cash pursuant to this covenant, such Net Available Cash shall be invested in
Permitted Investments.
Within 30 days after the New Asset Acquisition Date, the Company shall
commence a Net Available Cash Offer by mailing a notice to the Trustee and each
Holder stating:
(i) that the Net Available Cash Offer is being made pursuant to this
Section and that all Securities validly tendered will be accepted for
payment on a pro rata basis;
(ii) the purchase price and the date of purchase (which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date
notice is mailed) (the "Net Available Cash Payment Date");
(iii) that any Security not tendered will continue to accrue interest
as provided in this Indenture;
(iv) that, unless the Company defaults in the payment therefore, any
Security accepted for payment pursuant to the Net Available Cash Offer
shall cease to accrue interest after the Net Available Cash Payment Date;
(v) that Holders electing to have a Security purchased pursuant to
the Net Available Cash Offer will be required to surrender the Security,
together with the form entitled "Option of Holder to Elect Purchase" on the
reverse side of the Security duly completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the
Business Day immediately preceding the Net Available Cash Payment Date;
(vi) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Net Available Cash Payment Date, a
facsimile transmission or letter setting forth the name of such Holder, the
principal amount of Securities delivered for purchase and a statement that
such Holder is withdrawing his election to have such Securities purchased;
and
31
(vii) that Holders whose Securities are being purchased only in part
will be issued new Securities of like tenor equal in principal amount to
the unpurchased portion of the Securities surrendered; provided, however,
that each Security purchased and each new Security issued shall be in an
original principal amount of $1,000 or integral multiples thereof.
On or prior to the date notice is mailed to the Trustee and each
Holder, the Company shall furnish the Trustee with an Officers' Certificate of
the Company stating the amount of the Net Available Cash Payment.
On the Net Available Cash Payment Date, the Company shall:
(i) accept for payment on a pro rata basis Securities or portions
thereof tendered pursuant to the Net Available Cash Offer;
(ii) deposit with the Paying Agent money sufficient to pay the
purchase price of all Securities or portions thereof so accepted; and
(iii) deliver, or cause to be delivered, to the Trustee, Securities or
portions thereof so accepted together with an Officers' Certificate of the
Company specifying the Securities or portions thereof accepted for payment
by the Company.
The Company will publicly announce the results of the Net Available
Cash Offer as soon as practicable after the Net Available Cash Payment Date.
Notwithstanding the foregoing, the Company may modify the procedures
set forth above for a Net Available Cash Offer in any manner not adverse to
holders of the Securities.
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
covenant. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this covenant, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this clause by virtue thereof.
SECTION 4.07. Limitation on Debt and Preferred Stock of Subsidiaries.
------------------------------------------------------
The Company shall not permit any Subsidiary to issue, directly or indirectly,
any Debt or Preferred Stock except:
-32-
(a) Debt or Preferred Stock issued to and held by the Company or a
Wholly Owned Subsidiary; provided, however, that (i) any subsequent
issuance or transfer of any Capital Stock that results in any such Wholly
Owned Subsidiary ceasing to be a Wholly Owned Subsidiary or (ii) any
subsequent transfer of such Debt or Preferred Stock (other than to the
Company or a Wholly Owned Subsidiary) shall be deemed, in each case, to
constitute the issuance of such Debt or Preferred Stock by the issuer
thereof;
(b) Debt or Preferred Stock of a Subsidiary issued and outstanding on
or prior to the date on which such Subsidiary was acquired by the Company
(other than Debt or Preferred Stock issued as consideration in, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of transactions pursuant to which
such Subsidiary became a Subsidiary or was acquired by the Company);
(c) Any other Debt or Preferred Stock (other than any described in
clause (a) or (b)) issued and outstanding on the date the Securities are
issued;
(d) Debt or Preferred Stock issued in exchange for, or the proceeds
of which are used to Refinance, Debt or Preferred Stock referred to in the
foregoing clause (b) or (c); provided, however, the principal amount or
liquidation value of such Debt or Preferred Stock so issued shall not
exceed the principal amount or the liquidation value of the Debt or
Preferred stock so Refinanced and (ii) the Debt or Preferred Stock so
issued (A) shall have a Stated Maturity no earlier than the Stated Maturity
of the Debt or Preferred Stock being exchanged or Refinanced and (B) shall
have an Average Life no less than the remaining Average Life of the Debt or
Preferred Stock being Refinanced; and
(e) Debt and Preferred Stock in an aggregate principal amount which,
together with any other Debt or Preferred stock of Subsidiaries then
outstanding (other than Debt or Preferred Stock permitted by clauses (a)
through (d) of this covenant) does not exceed $20.0 million (less the
amount of any Debt then outstanding and incurred pursuant to Section
4.04(b)(5)).
SECTION 4.08. Limitation on Liens Securing Debt. The Company shall
---------------------------------
not, and shall not permit any Subsidiary to, directly or indirectly, create,
incur, assume or otherwise cause or suffer to exist or become effective any Lien
securing Debt of any kind (other than Permitted Liens) upon any of their
respective property or assets, now owned or hereafter acquired, or any income or
profits therefrom, unless the Company makes or causes to be made effective
provision whereby payment of the principal and interest on the Securities will
be secured by such
-33-
Lien equally and ratably with (or prior to) such Debt for so long as such Debt
shall be secured; provided, however, that (i) in the event of any sale, transfer
or other disposition by the Company or any Subsidiary of Accounts Receivable or
of any Subsidiary substantially all the assets of which are Accounts Receivable,
which sale, transfer or other disposition constitutes a "sale" under generally
accepted accounting principles (as in effect at the time thereof), neither such
sale, transfer or other disposition nor any recourse provided by the Company or
any Subsidiary in connection therewith shall, in any event, constitute Debt or a
Lien and (ii) neither the satisfaction and discharge of any Debt pursuant to any
indenture or other instrument governing such Debt, nor the defeasance of any
Debt pursuant to any indenture or other instrument governing such Debt, shall be
deemed the creation, incurrence, assumption or existence of any Lien securing
Debt.
SECTION 4.09. Limitation on Sale and Leaseback Transactions. The
---------------------------------------------
Company shall not, and shall not permit any Subsidiary to, enter into any
arrangement with any person providing for the leasing by the Company or any
Subsidiary of any real or tangible personal property (except for leases for a
term of not more than one year (including renewal rights) or between the Company
and a Subsidiary or between Subsidiaries), which property has been or is to be
sold or transferred by the Company or such Subsidiary to such person in
contemplation of such leasing, unless (i) the Company or such Subsidiary would
be entitled to create a Lien on such property securing Debt in an amount equal
to the Attributable Debt with respect to such arrangement without equally and
ratably securing the Securities pursuant to Section 4.08 or (ii) the Company or
such Subsidiary shall have received consideration from such arrangement at least
equal to the fair market value of the property subject thereto (which shall be
determined in good faith by the Board of Directors and evidenced by a resolution
of the Board of Directors) and elects to treat the assets subject to such
arrangement as an Asset Disposition subject to Section 4.06.
SECTION 4.10. Limitation on Transactions with Affiliates. The Company
------------------------------------------
shall not, and shall not permit any Subsidiary to, conduct any business or enter
into any transaction or series of similar transactions (including the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any Affiliate of the Company (other than (i) a Wholly Owned Subsidiary or (ii)
an employee stock ownership plan, unless the terms of such business, transaction
or series of transactions are fair and reasonable to the Company. All such
business, transaction or series of transactions that are approved by the Board
of Directors (including by a majority of the Independent Committee of the Board
of Directors) shall be deemed fair and reasonable to the Company. This Section,
however, will not prohibit any management compensation arrangements consistent
with industry practice, and all such business, transactions or
-34-
series of transactions that have been completed or with respect to which
agreements have been entered into prior to the date of this Indenture shall be
deemed fair and reasonable to the Company.
SECTION 4.11. Change of Control. (a) Upon a Change of Control, each
-----------------
Holder shall have the right to require that the Issuers repurchase such Holder's
Securities (other than Securities called for redemption pursuant to Article III)
at a purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase, in accordance with
the terms contemplated in this Section 4.11.
(b) Within 30 days following any Change of Control, the Issuers shall mail
a notice to each Holder (other than each Holder to which the Issuers have
theretofore mailed a notice of redemption pursuant to Section 3.03 in connection
with the redemption of all the Securities held by such Holder) with a copy to
the Trustee stating: (1) that a Change of Control has occurred and that such
Holder has the right to require the Issuers to purchase such Holder's Securities
(other than Floating Rate Securities called for redemption pursuant to Article
III) at a purchase price in cash equal to 101% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase; (2) the
circumstances and relevant facts regarding such Change of Control; (3) the
repurchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); and (4) the instructions, determined by
the Issuers consistent with this Indenture, that a Holder must follow in order
to have its Securities purchased.
(c) Holders electing to have a Security purchased will be required to
surrender the Security, with the attached form entitled "Option of Holder to
Elect Purchase" duly completed, to the Issuers at the address specified in the
notice referred to in paragraph (b) above at least 10 Business Days prior to the
repurchase date. Holders will be entitled to withdraw their election if the
Trustee or the Issuers receive, not later than three Business Days prior to the
repurchase date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security delivered for
purchase by the Holder and a statement that such Holder is withdrawing his
election to have such Security purchased.
(d) On the purchase date, all Securities purchased by the Issuers under
this Section shall be delivered by the Trustee for cancellation, and the Issuers
shall pay the purchase price plus accrued and unpaid interest, if any, to the
Holders entitled thereto.
(e) The Issuers shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and
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any other securities laws or regulations in connection with the repurchase of
Securities pursuant to this Section. To the extent that the provision of any
securities laws or regulations conflict with the provisions of this Section, the
Issuers shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached their obligations under this Section by
virtue thereof.
SECTION 4.12. Uncompleted Acquisition Offer. If the Company does not
-----------------------------
consummate the Acquisition by June 15, 1995 (the "Uncompleted Acquisition
Date"), the Issuers will be required to make an offer (the "Uncompleted
Acquisition Offer"), pursuant to and subject to the conditions contained in this
Indenture, to the holders of the Securities to purchase up to $35,000,000
principal amount of Securities at a purchase price of 100% of the principal
amount thereof plus accrued and unpaid interest to the date of purchase.
Within 30 days after the Uncompleted Acquisition Date, the Issuers
shall commence an Uncompleted Acquisition Offer by mailing a notice to the
Trustee and each Holder stating:
(i) that the Uncompleted Acquisition Offer is being made
pursuant to this Section and that all Securities validly tendered will be
accepted for payment on a pro rata basis;
(ii) the purchase price and the date of purchase (which
shall be a Business Day no earlier than 30 days nor later than 60 days from
the date notice is mailed) (the "Uncompleted Acquisition Offer Payment
Date");
(iii) that any Security not tendered will continue to accrue
interest as provided in this Indenture;
(iv) that, unless the Issuers default in the payment
therefore, any Security accepted for payment pursuant to the Uncompleted
Acquisition Offer shall cease to accrue interest after the Uncompleted
Acquisition Offer Payment Date;
(v) that Holders electing to have a Security purchased
pursuant to the Offer will be required to surrender the Security, together
with the form entitled "Option of Holder to Elect Purchase" on the reverse
side of the Security duly completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the Business Day
immediately preceding the Uncompleted Acquisition Offer Payment Date;
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(vi) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Uncompleted Acquisition Offer
Payment Date, a facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Securities delivered for purchase and
a statement that such Holder is withdrawing his election to have such
Securities purchased; and
(vii) that Holders whose Securities are being purchased only in part
will be issued new Securities of like tenor equal in principal amount to
the unpurchased portion of the Securities surrendered; provided, however,
that each Security purchased and each new Security issued shall be in an
original principal amount of $1,000 or integral multiples thereof.
On or prior to the date notice is mailed to the Trustee and each Holder,
the Company shall furnish the Trustee with an Officers' Certificate of the
Company stating the amount of the payment.
On the Uncompleted Acquisition Payment Date, the Company shall:
(i) accept for payment on a pro rata basis Securities or portions
thereof tendered pursuant to the Uncompleted Acquisition Offer;
(ii) deposit with the Paying Agent money sufficient to pay the
purchase price of all Securities or portions thereof so accepted; and
(iii) deliver, or cause to be delivered, to the Trustee, Securities
or portions thereof so accepted together with an Officers' Certificate of
the Company specifying the Securities or portions thereof accepted for
payment by the Company.
Notwithstanding the foregoing, the Company may modify the procedures set
forth above for an Uncompleted Acquisition Offer in any manner not adverse to
holders of the Securities.
The Issuers shall comply, to the extent applicable, with the requirements
of Section 14(e) of the Exchange Act and any other securities laws or
regulations in connection with the repurchase of Securities pursuant to this
covenant. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this covenant, the Issuers shall comply
with the applicable securities laws and regulations and
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shall not be deemed to have breached its obligations under this clause by virtue
thereof.
SECTION 4.13. Compliance Certificate. Each of the Issuers shall
----------------------
deliver to the Trustee within 120 days after the end of each fiscal year an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company or Finance Corp., as the case
may be, they would normally have knowledge of any Default by the Company or
Finance Corp., as the case may be, and whether or not the signers know of any
Default that occurred during such period. If they do, the certificate shall
describe the Default, its status and what action the Company or Finance Corp.,
as the case may be, is taking or purposes to take with respect thereto.
ARTICLE V
---------
Successors
----------
SECTION 5.01. When the Company May Merge or Transfer Assets. The
---------------------------------------------
Company shall not consolidate with or merge with or into, or sell, convey,
transfer or lease all or substantially all its assets to, another person unless
(i) the resulting, surviving or transferee person or lessee (if other than the
Company) shall be a person organized and existing under the laws of the United
States or any State thereof or the District of Columbia and such entity shall
assume by supplemental indenture all the obligations of the Company under the
Securities and this Indenture, (ii) immediately after giving effect to such
transaction, no Default shall have happened and be continuing, (iii) immediately
after giving effect to such transaction, the resulting, surviving or transferee
person would be able to issue an additional $1.00 of Debt pursuant to the first
sentence of Section 4.04, (iv) immediately after giving effect to such
transaction, the resulting, surviving or transferee person has a Consolidated
Net Worth which is not less than the Consolidated Net Worth of the Company
immediately prior to such transaction and (v) the Company shall have delivered
to the Trustee an Officers' Certificate of the Company and an Opinion of Counsel
of the Company, each stating that such consolidation, merger, sale, conveyance,
transfer or lease and such supplemental indenture comply with this Indenture.
SECTION 5.02. When Finance Corp. May Merge or Transfer Assets.
-----------------------------------------------
Finance Corp. shall not consolidate with or merge with or into, or sell, convey,
transfer or lease all or substantially all its assets to, another person unless
(i) the resulting, surviving or transferee person or lessee (if other than
Finance Corp.) shall be an entity organized or existing under the laws of the
United States or any state thereof or the District of Columbia and such entity
expressly assumes by supplemental indenture all the obligations of the Company
under the Securities
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and this Indenture, (ii) immediately after giving effect to such transaction, no
Default shall have happened and be continuing and (iii) Finance Corp. shall have
delivered to the Trustee an Officers' Certificate of Finance Corp. and an
Opinion of Counsel of Finance Corp., each stating that such consolidation,
merger, sale, conveyance, transfer or lease and such supplemental indenture
comply with this Indenture.
SECTION 5.03. Obligations After Merger or Transfer. Upon any such
------------------------------------
consolidation, merger, sale, conveyance, transfer or lease, and following such
an assumption by the resulting, surviving or transferee person or lessee, (i)
such resulting, surviving or transferee person or lessee shall succeed to and be
substituted for the Company or Finance Corp., as the case may be, with the same
effect as if it had been named herein and (ii) the Company or Finance Corp., as
the case may be, shall be released and discharged from all obligations and
covenants under this Indenture; provided, however, that in the event of any such
lease, the Company or Finance Corp., as the case may be, shall not, by operation
of this Section 5.03, be released or discharged from its obligation to pay the
principal of and interest on the Securities at the times, places and rate
prescribed in this Indenture and the Securities. In the case of the Company or
Finance Corp., as the case may be, such resulting, surviving or transferee
person or lessee may cause to be signed, and may issue either in its own name or
in the name of the Company or Finance Corp., as the case may be, prior to such
succession any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company or Finance Corp., as the case may be,
and delivered to the Trustee; and, upon the order of such resulting, surviving
or transferee person or lessee instead of the Company or Finance Corp., and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the officers of the
Company or Finance Corp. to the Trustee for authentication, and any Securities
which such resulting, surviving or transferee person or lessee thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture.
In case of any such consolidation, merger, sale, conveyance, transfer
or lease, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
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ARTICLE VI
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
-----------------
(1) the Issuers default in any payment of interest on any Security
when the same becomes due and payable, and such default continues for a
period of 30 days;
(2) the Issuers default in the payment of the principal of any
Security when the same becomes due and payable at its Stated Maturity, upon
redemption, upon declaration or otherwise;
(3) the Company or Finance Corp. fails to comply with Section 5.01;
(4) the failure by the Company to comply for 30 days after notice
with any of its obligations under Section 4.02, 4.03, 4.04, 4.05, 4.06,
4.07, 4.08, 4.09, 4.10 or 4.11 (other than a failure to purchase
Securities);
(5) the Issuers fail to comply with any of their respective
agreements in the Securities or this Indenture (other than those referred
to in (1), (2), (3) or (4) above) and such failure continues for 60 days
after the notice specified below;
(6) Debt of the Company, Finance Corp. or any Significant Subsidiary
is not paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default and the total
amount of such Debt unpaid or accelerated exceeds $20,000,000 and such
failure continues for 10 days after notice;
(7) the Company, Finance Corp. or any Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in
an involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
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(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company, Finance Corp. or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company, Finance Corp. or any
Significant Subsidiary or for any substantial part of their respective
property; or
(C) order the winding up or liquidation of the Company or any
Significant Subsidiary; or
(9) any judgment or decree for the payment of money in excess of
$20,000,000 (to the extent not covered by insurance) shall be rendered
against either of the Issuers, and there is a period of 60 days following
such judgment during which such judgment or decree is not discharged,
waived or the execution thereof stayed and such judgment or decree is not
satisfied, discharged, waived or the execution stayed within 10 days after
the notice specified below.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
------------------
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clause (4), (5), (6) or (9) is not an Event of Default
until the Trustee or the Holders of at least 25% in principal amount of the
Securities notify the Issuers of the Default and the Issuers do not cure such
Default within the time specified after receipt of such Notice. Such Notice must
specify the Default, demand that it be remedied and state that such notice is a
"Notice of Default".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Default or Event of Default, its status and what action the Issuers are
taking or propose to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than an
------------
Event of Default specified in Section 6.01(7) or (8)) occurs and is continuing,
the Trustee by notice to the Issuers, or the Holders of at least 25% in
principal amount of the Securities by notice to the Issuers and the Trustee, may
declare the principal of and the accrued interest on all the Securities to be
due and payable. Upon such a declaration, such principal and interest shall be
due and payable immediately. If an Event of Default specified in Section 6.01(7)
or (8) occurs and is continuing, the principal of and interest on all the
-41-
Securities shall ipso facto become and be immediately due and payable without
---- -----
any declaration or other act on the part of the Trustee or any Securityholders.
The Holders of a majority in principal amount of the Securities by notice to the
Trustee may rescind an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
have been cured or waived except nonpayment of principal or interest that has
become due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and its
--------------
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right of remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
-----------------------
principal amount of the Securities by notice to the Trustee may waive an
existing Default and its consequences (including in connection with a tender
offer or exchange offer for Securities) except (1) a Default in the payment of
the principal of or interest on a Security or (2) a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each
Securityholder affected. When a Default is waived, it is deemed cured, but no
such waiver shall extend to any subsequent or other Default or impair any
consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
-------------------
principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee (including in connection
with a tender offer or exchange offer for Securities). However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability, provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it
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in its sole discretion against all losses and expenses caused by taking or not
taking such action.
SECTION 6.06. Limitation on Suits. A Securityholder may not pursue
-------------------
any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the Securities
make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority of principal amount of the Securities
do not give the Trustee a direction inconsistent with the request during
such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
------------------------------------
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and interest on the Securities held by such Holder, on
or after the respective due dates expressed in the Securities, or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default in
--------------------------
payment of interest or principal specified in Section 6.01(1) or (2) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Issuers for the whole amount of principal and
interest remaining unpaid (together with interest on such unpaid interest to
the extent lawful) and the amounts provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
--------------------------------
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company or Finance Corp., or
-43-
their respective creditors or property, and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
----------
securities pursuant to this Article 6, it shall pay out such money or securities
in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such record
date, the Issuers shall mail to each Securityholder and the Trustee a notice
that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
---------------------
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. Neither the Company
--------------------------------
nor Finance Corp. (to the extent they may lawfully do so) shall at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company and Finance Corp.
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(to the extent that they may lawfully do so) hereby expressly waive all benefit
or advantage of any such law, and shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE VII
Trustee
-------
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
-----------------
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
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(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuers.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any
-----------------
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute
wilful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
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SECTION 7.03. Individual Rights of Trustee. The Trustee in its
----------------------------
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
--------------------
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Issuers'
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company or Finance Corp. in the Indenture or in any document
issued in connection with the sale of the Securities or in the Securities other
than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
------------------
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of principal of or interest on any Security
(including payments pursuant to the mandatory redemption provisions of such
Security), the Trustee may withhold the notice if and so long as a committee of
its Trust Officers in good faith determines that withholding the notice is in
the interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. On or before July 15,
-----------------------------
1996 and or on before July 15 in every year thereafter, the Trustee shall mail
to each Securityholder a brief report dated as of May 16 that complies with TIA
(S) 313(a). The Trustee also shall comply with TIA (S) 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which the Securities are
listed. The Company agrees to notify promptly the Trustee whenever the
Securities become listed on any stock exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Issuers shall pay to the
--------------------------
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses
disbursement and advances of the Trustee's agents, counsel, accountants and
experts. The Issuers shall indemnify the Trustee against any and all loss,
liability or expense (including reasonable attorneys' fees and expenses)
incurred by it in connection with the administration of
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this trust and the performance of its duties hereunder. The Trustee shall notify
the Issuers promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Issuers shall not relieve the Issuers of their
obligations hereunder. The Issuers shall defend such claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Issuers
shall pay the reasonable fees and expenses of such counsel. The Issuers need not
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Trustee through the Trustee's own wilful misconduct, negligence
or bad faith.
To secure the Issuers' payment obligations in this Section, the
Issuers and the Holders agree that the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the Trustee, except
that held in trust to pay principal of and interest on particular Securities.
The Issuers' payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs fees and
expenses (including reasonable attorneys' fees and expenses) after the
occurrence of a Default specified in Section 6.01(7) or (8), such fees and
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign at any
----------------------
time by so notifying the Issuers. The Holders of a majority in principal amount
of the Securities may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Issuers shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Issuers shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the
-48-
successor Trustee, subject to the lien provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers or the
Holders of a majority in principal amount of the Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Issuers' obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
---------------------------
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor to the Trustee; and in
all such cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate of the
Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all
-----------------------------
times satisfy the requirements of TIA (S) 310(a). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
(S) 310(b), including the optional provision permitted by the second sentence of
TIA (S) 310(b)(9); provided, however, that there shall be excluded from the
operation of TIA (S) 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Issuers are outstanding if the requirements for such exclusion set forth in
TIA (S) 310(b)(1) are met.
-49-
SECTION 7.11. Preferential Collection of Claims Against Issuers. The
-------------------------------------------------
Trustee shall comply with TIA S 311(a), excluding any creditor relationship
listed in TIA S 311(b). A Trustee who has resigned or been removed shall be
subject to TIA S 311(a) to the extent indicated.
ARTICLE VIII
Discharge of Indenture: Defeasance
----------------------------------
SECTION 8.01. Discharge of Liability on Securities; Defeasance. (a)
------------------------------------------------
When (i) the Issuers deliver to the Trustee all outstanding Securities (other
than Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have become due and payable and the Issuers irrevocably
deposit with the Trustee funds sufficient to pay at maturity all outstanding
Securities, including interest thereon (other than Securities replaced pursuant
to Section 2.07), and if in either case the Issuers pay all other sums payable
hereunder by the Issuers, then this Indenture shall, subject to Sections 8.01(c)
and 8.06, cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Issuers
accompanied by an Officers' Certificate of the Company and an Opinion of Counsel
and at the cost and expense of the Issuers.
(b) Subject to Section 8.01(c) and 8.06, the Issuers at any time may
terminate (i) all their obligations under the Securities and this Indenture
("legal defeasance option") or (ii) their obligations under Sections 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 5.01 and 5.02 and the operation
of Sections 6.01(3), 6.01(4), 6.01(5), 6.01(6), 6.01(7) (only with respect to
Significant Subsidiaries), 6.01(8) (only with respect to Significant
Subsidiaries) and 6.01(9) ("covenant defeasance option"). The Issuers may
exercise their legal defeasance option notwithstanding their prior exercise of
their covenant defeasance option.
If the Issuers exercise their legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default. If the Issuers
exercise their covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Section 6.01(3),
6.01(4), 6.01(5), 6.01(6), 6.01(7) (only with respect to Significant
Subsidiaries), 6.01(8) (only with respect to Significant Subsidiaries) or
6.01(9).
Upon satisfaction of the conditions set forth herein and upon request
of the Issuers, the Trustee shall acknowledge in writing the discharge of those
obligations that the Issuers terminate.
-50-
(c) Notwithstanding clauses (a) and (b) above, the Issuers'
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.04, 8.05 and
8.06 shall survive until the Securities have been paid in full. Thereafter, the
Issuers' obligations in Sections 7.07, 8.04 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Issuers may exercise
------------------------
their legal defeasance option or their covenant defeasance option only if:
(1) the Issuers irrevocably deposit in trust with the Trustee money
or U.S. Government Obligations for the payment of principal and interest on
the outstanding Securities to maturity or redemption, as the case may be;
(2) the Issuers deliver to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts (but, in the case of the legal defeasance option only, not
more than such amounts) as will be sufficient to pay principal and interest
when due on all the outstanding Securities to maturity or redemption, as
the case may be;
(3) 123 days pass after the deposit is made and during the 123-day
period no Default (with respect to the Issuers) specified in Section
6.01(7) or (8) occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on either of the Issuers; and
(6) the Company delivers an Opinion of Counsel to the effect that
Securityholders will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit and defeasance and will be subject
to Federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such deposit and defeasance had
not occurred (and, in the case of legal defeasance only, such Opinion of
Counsel must be based on a ruling of the Internal Revenue Service or a
change in applicable Federal income tax law); and
(7) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities as contemplated by this Article
8 have been complied with.
-51-
Before or after a deposit, the Issuers may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall hold in
--------------------------
trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities.
SECTION 8.04. Repayment to the Company. The Trustee and the Paying
------------------------
Agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years, and,
thereafter, Securityholders entitled to the money must look to the Issuers for
payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The Issuers shall
------------------------------------
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or the principal
and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable
-------------
to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuers' obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if the
Issuers have made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Issuers shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
-52-
ARTICLE IX
Amendments
----------
SECTION 9.01. Without Consent of Holders. The Company, Finance Corp.
--------------------------
and the Trustee may amend this Indenture or the Securities without notice to or
consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Internal Revenue Code of 1986, as amended, or in a
manner such that the uncertificated Securities are described in Section
163(f)(2)(B) of the Internal Revenue Code of 1986, as amended;
(4) to add guarantees with respect to the Securities;
(5) to add to the covenants of the Issuers for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Issuers;
(6) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA; or
(7) to make any change that does not adversely affect the rights of
any Securityholder.
After an amendment under this Section becomes effective, the Issuers
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.02. With Consent of Holders. Subject to the next sentence,
-----------------------
the Company, Finance Corp. and the Trustee may amend this Indenture or the
Securities in any respect without notice to any Securityholder but with the
written consent of the Holders of at least a majority in principal amount of the
Securities (including consents obtained in connection with a tender offer or
exchange offer for Securities). However, without the consent of each
Securityholder affected, no amendment shall:
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
-53-
(2) reduce the rate of or extend the time for payment of interest on
any Security;
(3) reduce the principal of or extend the fixed maturity of any
Security;
(4) reduce the premium payable upon the redemption of any Security or
change the time at which any Security may or shall be redeemed;
(5) make any Security payable in money other than that stated in the
Security; or
(6) make any change in Section 6.04 or 6.07 or this Section.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the Issuers
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment
-----------------------------------
to this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
---------------------------------------------
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder.
The Issuers may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to give their consent or
take any other action described above. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those persons who were
Securityholders at such record date (or their duly designated proxies), and only
those persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such persons
continue to be Holders
-54-
after such record date. No such consent shall be valid or effective for more
than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an amendment
-------------------------------------
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Issuers or the Trustee so determine, the Issuers
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee to Sign Amendments. The Trustee shall sign any
--------------------------
amendment authorized pursuant to this Article 9 if the amendment does note
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that such amendment is authorized
or permitted by this Indenture and that all conditions precedent, if any, have
been satisfied.
ARTICLE X
Miscellaneous
-------------
SECTION 10.01. Trust Indenture Act Controls. If any provision of this
----------------------------
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 10.02. Notices. Any notice or communication shall be in
-------
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company or Finance Corp.:
BCP Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Secretary
if to the Trustee:
The Chase Manhattan Bank (National Association)
4 Chase XxxxxXxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Institutional Trust Group
-55-
The Company, Finance Corp. or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Security holder shall be
mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above it is duly given, whether or not the addressee receives it.
SECTION 10.03. Communication by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA S 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, Finance Corp., the Trustee, the Registrar and anyone
else shall have the protection of TIA S 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.
---------------------------------------------------
Upon any request or application by the Issuers to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate stating that, in the Opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05. Statement Required in Certificate or Opinion. Each
---------------------------------------------
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to
-56-
whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such covenant or condition has been complied with.
SECTION 10.06. When Securities Disregarded. In determining whether
----------------------------
the Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Issuers or by any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuers shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 10.07 Rules by Trustee, Paying Agent and Registrar. The
---------------------------------------------
Trustee may make reasonable rules for action by or meeting of Securityholders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
SECTION 10.08. Legal Holidays. A "Legal Holiday" is a Saturday, a
---------------
Sunday or a day on which banking institutions are not required to be open in the
State of New York. If a payment date is a Legal Holiday, payment shall be made
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a regular record date is a Legal Holiday,
the record date shall not be affected.
SECTION 10.09. Governing Law. This Indenture and the Securities shall
--------------
be governed by, and construed in accordance with, the laws of the State of New
York but without giving effect to applicable principles of conflicts of law to
the extent that the application of the laws of another jurisdiction would be
required thereby.
SECTION 10.10. No Recourse Against Others. (a) No director, officer,
---------------------------
employee, partner or stockholder, as such, of the Company or of Finance Corp.
(or of such partner or stockholder) shall have any liability for any obligations
of the Company or of Finance Corp., as the case may be, under the Securities or
this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be a
part of the consideration for the issue of the Securities.
(b) without limiting the generality of the foregoing, if the Company
is a limited partnership, the obligations of the
-57-
Company hereunder and under the Securities will be non-recourse to the general
partner (the "General Partner") of the Company (and its affiliates (other than
the Company)), and principal of and interest on the Securities will be payable
only out of the cash flow and assets of the Company. The Trustee hereby agrees,
and each holder of a Security will be deemed to have agreed, that,
notwithstanding any statutory and/or common law liability of a general partner
for the debts and obligations of a partnership, neither the General Partner nor
its assets (nor any of its affiliates (other than the Company) nor their
respective assets) shall be liable for any of the obligations of the Company
hereunder or under the Securities, it being expressly agreed and acknowledged
that all such obligations of the Company shall be payable and satisfied only
from the cash flow and assets of the Company.
SECTION 10.11. Successors. All agreements of the Company and Finance
----------
Corp. in this Indenture and the Securities shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 10.12. Multiple Originals. The parties may sign any number of
------------------
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 10.13. Table of Contents; Headings. The table of contents,
----------------------------
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions thereof.
-58-
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
XXXXXX CHEMICALS AND PLASTICS
OPERATING PARTNERSHIP
by: BCP MANAGEMENT, INC.,
its General Partner,
Attest: by: /S/ XXXXXX X. XXXXXXX
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
/S/ XXXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Secretary
BCP FINANCE CORPORATION
Attest: by: /S/ XXXXXX X. XXXXXXX
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
/S/ XXXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Secretary
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Trustee
Attest: by: /S/ XXXXXX X. XXXXXXXXXX
---------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Second Vice President
/S/ SHIEK WILTSHIRE
------------------------------
Name: Shiek Wiltshire
Title: Assistant Secretary
-59
EXHIBIT A
[FORM OF SECURITY]
XXXXXX CHEMICALS AND PLASTICS OPERATING LIMITED PARTNERSHIP
BCP FINANCE CORPORATION
No. $
9 1/2% Note Due 2005
XXXXXX CHEMICALS AND PLASTICS OPERATING LIMITED PARTNERSHIP, a
Delaware limited partnership, and BCP FINANCE CORPORATION, a Delaware
corporation, as joint and several obligors, promise to pay to , or
registered assigns, the principal sum of Dollars on May 1, 2005.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
Additional provisions of this Security are set forth on the other side
of this Security.
Dated:
XXXXXX CHEMICALS AND PLASTICS
OPERATING LIMITED PARTNERSHIP
By: BCP MANAGEMENT, INC.
as General Partner
By:
____________________________
President
____________________________
Secretary
BCP FINANCE CORPORATION
By:
____________________________
President
____________________________
Secretary
-60-
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE CHASE MANHATTAN BANK (National Association),
as Trustee, certifies that this
is one of the Securities referred
to in the Indenture.
By:
______________________________
Authorized Signatory
-61-
[FORM ON REVERSE SIDE OF SECURITY]
9 1/2% Note Due 2005
1. Interest
--------
XXXXXX CHEMICALS AND PLASTICS OPERATING LIMITED PARTNERSHIP, a
Delaware limited partnership (such partnership, and its successors and assigns
under the Indenture hereinafter referred to, being herein called the "Company"),
and BCP FINANCE CORPORATION, a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called "Finance Corp."; the Company and Finance Corp. are collectively referred
to herein as the "Issuers"), jointly and severally promise to pay interest on
the principal amount of this Security at the rate per annum shown above. The
Issuers will pay interest semiannually on May 1 and November 1 of each year
(beginning November 1, 1995). Interest on Securities will accrue from the most
recent date to which interest has been paid or, if no interest has been paid or
duly provided for, from May 1, 1995. Interest will be computed on the basis of a
360-day year of twelve 30-day months. The Issuers shall pay interest on overdue
principal at the rate borne by the Securities plus 1% per annum, and they shall
pay interest on overdue installments of interest at the same rate to the extent
lawful.
2. Method of Payment
-----------------
The Issuers will pay interest on the Securities (except defaulted
interest) to the persons who are registered holders of Securities at the close
of business on the April 15 or October 15 next preceding the interest payment
date even if Securities are cancelled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Issuers will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. However, the Issuers may pay principal and interest by
check payable in such money and may mail an interest check to a Holder's
registered address.
3. Paying Agent and Registrar
--------------------------
Initially, The Chase Manhattan Bank (National Association), a
corporation organized under the laws of the United States of America
("Trustee"), will act as Paying Agent and Registrar. The Issuers may appoint and
change and Paying Agent, Registrar or co-registrar without notice. The Company
or
-62-
any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying
Agent, Registrar or co-registrar.
4. Indenture
---------
The Company issued the Securities under an Indenture dated as of May
1, 1995 ("Indenture"), among the Company, Finance Corp. and the Trustee. The
terms of the Securities include those stated in the Indenture, and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
------
SS 77aaa-77bbbb) as in effect on the date of the Indenture (the "Act"). The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the Act for a statement of those terms. Capitalized terms used
herein and not defined herein have the meaning ascribed thereto in the
Indenture. The Issuers will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture which has in it
the text of this Security in larger type.
The Securities are general unsecured obligations of the Issuers
limited to $200,000,000 aggregate principal amount (subject to Section 2.07 of
the Indenture). The Indenture imposes certain limitations on (i) the payment of
dividends on, and redemption of, capital stock of the Company and its
subsidiaries and the redemption of certain subordinated obligations of the
Company, (ii) the issuance of additional debt by the Company, (iii) limitations
on restrictions on distributions from subsidiaries of the Company, (iv) sales of
assets and subsidiary stock, (v) the issuance of debt and preferred stock by the
Company's subsidiaries, (vi) sale and leaseback transactions and (vii)
transactions with affiliates. The Indenture also provides that if the Company
does not consummate the acquisition of the Addis Assets by June 15, 1995, the
Issuers will be required to offer to purchase up to $35.0 million in principal
amount of the Securities at 100% of the principal amount thereof plus accrued
and unpaid interest to the date of purchase.
5. Optional Redemption
-------------------
The Securities may not be redeemed prior to May 1, 2000. On and after
that date, the Issuers may redeem all the Securities in whole at any time or in
part from time to time at the following redemption prices (expressed in
percentages of principal amount) plus accrued interest to the redemption date:
-63-
If redeemed during the 12 month period beginning May 1,
Redemption
Year Price
---- ----------
2000 ........................................... 104.00%
2001 ........................................... 102.50%
2002 ........................................... 101.25%
2003 and thereafter ............................. 100.00%
6. Notice of Redemption
--------------------
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Securities to be redeemed
at his, her or its registered address. Securities in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of accrued and unpaid interest on all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied on or after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
7. Change of Control
-----------------
Upon a Change of Control, each Holder shall have the right (subject to
any right of the Issuers to redeem all or any part of the Securities pursuant to
Article III of the Indenture) to require that the Issuers repurchase such
Holder's Securities at a purchase price in cash equal to 101% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase, in accordance with Section 4.11 of the Indenture.
8. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements or transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Securities selected
for redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or any Securities for a period of 15
days before a selection of Securities to be redeemed or 15 days before an
interest payment date.
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9. Persons Deemed Owners
---------------------
The registered holder of this Security may be treated as the owner of
it for all purposes.
10. Unclaimed Money
---------------
If the money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
person. After any such payment, Holders entitled to the money must look only to
the Issuers and not to the Trustee for payment.
11. Defeasance
----------
Subject to certain conditions, the Issuers at any time may terminate
some or all of their obligations under the Securities and the Indenture if the
Issuers deposit with the Trustee money or U.S. Government Obligations for the
payment of principal, premium and interest on the Securities to the date fixed
for redemption or maturity, as the case may be.
12. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
(including consents obtained in connection with a tender offer or exchange offer
for Securities) and (ii) any default or noncompliance with any provision may be
waived with the written consent of the Holders of a majority in principal amount
outstanding of the Securities (including consents obtained in connection with
a tender offer or exchange offer for Securities). Subject to certain exceptions
set forth in the Indenture, without the consent of any Securityholder, the
Company, Finance Corp. and the Trustee may amend the Indenture or the Securities
to cure any ambiguity, omission, defect or inconsistency, or to comply with
Article 5 of the Indenture, or to provide for uncertificated Securities in
addition to or in place of certificated Securities, or to comply with the Act or
to add additional covenants or surrender the Issuers' rights, or to make certain
changes in the subordination provisions, or to make any change that does not
adversely affect the rights of any Securityholder.
13. Defaults and Remedies
---------------------
Under the Indenture, Events of Default include (i) default for 30 days
in payment of interest on the Securities; (ii) default in payment of principal
on the Securities at maturity, upon redemption pursuant to paragraph 5 hereof,
upon declaration or otherwise; (iii) failure by the Issuers to comply
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with other agreements in the Indenture or the Securities, in certain cases
subject to notice and lapse of time; (iv) failure to pay other debt after final
maturity or after acceleration thereof, if the total amount of such debt exceeds
$20,000,000; (v) certain events of bankruptcy or insolvency; and (vi) certain
judgments or decrees for the payment of money in excess of $20,000,000. If any
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the Securities may declare all the Securities
to be due and payable immediately. Certain events of bankruptcy or insolvency
are Events of Default which will result in the Securities being due and payable
immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default (except a Default
in payment of principal or interest) if it determines that withholding notice is
in their interest.
14. Trustee Dealings with the Issuers
---------------------------------
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its affiliates and may otherwise deal with the Company
or its affiliates with the same rights it would have if it were not Trustee.
15. No Recourse Against Others
--------------------------
A director, officer, employee, partner or stockholder, as such, of the
Company, Finance Corp. or the Trustee shall not have any liability for any
obligations of the Company or Finance Corp., as the case may be, under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
Without limiting the generality of the foregoing, if the Company is a
limited partnership, the obligations of the Company hereunder and under the
Indenture will be non-recourse to the general partner (the "General Partner") of
the Company (and its affiliates (other than the Company)), and principal of and
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interest on this Security will be payable only out of the cash flow and assets
of the Company. The Trustee hereby agrees, and each holder of a Security will be
deemed to have agreed, that, notwithstanding any statutory and/or common law
liability of a general partner for the debts and obligations of a partnership,
neither the General Partner nor its assets (nor any of its affiliates (other
than the Company) nor their respective assets) shall be liable for any of the
obligations of the Company hereunder or under the Indenture, it being expressly
agreed and acknowledged that all such obligations of the Company shall be
payable and satisfied only from the cash flow and assets of the Company.
16. Authentication
--------------
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
17. Abbreviations
-------------
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
18. CUSIP Numbers
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuers have caused CUSIP numbers to be
printed on the Securities and have directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
19. Notices
-------
Any notice or communication shall be in writing and delivered in
person or mailed by first-class addressed as follows:
if to the Company or Finance Corp.:
BCP Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Secretary
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if to the Trustee:
The Chase Manhattan Bank (National Association)
0 Xxxxx XxxxxXxxx Xxxxxx - 0xx Xxxxx
Brooklyn, New York 11245
Attention: Institutional Trust Group
The Company, Finance Corp. or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall be mailed
to the Securityholder at the Securityholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
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________________________________________________________________________________
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
________________________________________________________________________________
Date: _________________________ Your Signature: ____________________________
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
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OPTION OF HOLDER TO ELECT PURCHASE
To elect to have this Security purchased by the Issuers pursuant to
Section 4.06, 4.11 or 4.12 of the Indenture, check the box below:
{__} Section 4.06 {__} Section 4.11 {__} Section 4.12
To elect to have only part of this Security purchased by the Issuers
pursuant to Section 4.06, Section 4.11 or Section 4.12 of the Indenture, state
the amount you elect to have purchased (in integral multiples of $1,000):
$__________________
Date: __________________ Your Signature: ___________________________________
(Sign exactly as your name appears on this Security)
Tax Identification No.: ___________________________
Signature Guarantee.
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